Kim Van Nguyen v. Shirley S. Chater, Commissioner of the Social Security Administration

Claimant, Kim Van Nguyen, appeals from a denial of Social Security Disability benefits and Social Security Income benefits. While he has a history of numerous medical problems, including the effects of having been shot in both legs by the Communists in 1970 when he was a soldier in the South Vietnamese army, 1 the two principal issues in this case concern the ALJ’s consideration of claimant’s affective disorder and the effects of his chronic bronchial asthma. Specifically, claimant contends that the ALJ improperly credited a non-treating medical advisor over *1464 an examining psychologist because the ALJ failed to set forth specific legitimate reasons for doing so and the ALJ erred by not considering the lay testimony of claimant and his wife in- evaluating claimant’s residual functional capacity (RFC) or giving specific reasons for rejecting that lay testimony. We agree with claimant and therefore vacate and remand.

1.

Claimant contends that the ALJ erred by not crediting the conclusion of the examining psychologist, Dr. Brown, who determined that claimant met listing 12.04 for affective disorders. 20 CFR Pt. 404, Subpt. P., App 1, 12.04. The ALJ did not explicitly reject the…

concurring in part and dissenting in part:

I concur in Part II of the majority opinion, but must dissent from the analysis and conclusion of Part I.

Citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995) and Lester v. Chater, 81 F.3d 821, 831 (9th Cir.1995) (as amended), the majority concludes that “the ALJ erred *1468 because he neither explicitly rejected the opinion of Dr. Brown, nor set forth specific, legitimate reasons for crediting Dr. Walter over Dr. Brown.” Opinion at 1464. Andrews does not support the proposition stated, and Lester is inapposite.

In Andrews , the ALJ credited the testimony of a nontreating, consulting medical advis- or over that of a nontreating, examining psychologist. On appeal we stated that, just as the opinion of a treating physician is ordinarily accorded greater weight than that of a nontreating physician, “greater weight is accorded to the opinion of an examining physician than a non-examining physician.” 53 F.3d at 1041 (citing a federal regulation and a footnote to a Ninth Circuit case). 1 We did not hold, however, that an ALJ must provide specific, legitimate reasons for giving greater weight to the opinion of a consulting physician…

100 F.3d 1462 KIM VAN NGUYEN, PLAINTIFF-APPELLANT, v. SHIRLEY S. CHATER, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, * DEFENDANT-APPELLEE. No. 95-55346 United States Court of Appeals, NINTH CIRCUIT Argued and Submitted Aug. 9, 1996 Decided: November 20, 1996. Martin Taller, Anaheim, California, for the plaintiff-appellant. Donna W. Anderson, Assistant Regional Counsel, United States Social Security Administration, San Francisco, California, for the defendant-appellee. Appeal from the United States District Court for the Central District of California. D.C. No. CV-90-5473-JG. Rupert J. Groh, Magistrate Judge, Presiding. Before: Stephen Reinhardt, Edward Leavy, Circuit Judges and Robert E. Coyle, ** District Judge. REINHARDT, Circuit Judge: 1 Claimant, Kim Van Nguyen, appeals from a denial of Social Security Disability benefits and Social Security Income benefits. While he has a history of numerous medical problems, including the effects of having been shot in both legs by the Communists in 1970 when he was a soldier in the South Vietnamese army, 1 the two principal issues in this case concern the ALJ's consideration of claimant's affective disorder and the effects of his…