U.S. Court of Appeals for the Ninth Circuit, 2005

Monteiro v. Commissioner of the Social Security Administration

U.S. Court of Appeals for the Ninth Circuit · Decided March 18, 2005 · Nelson, Rawlinson, Schwarzer

130 F. App'x 93

Opinion of the Court

MEMORANDUM**

Anthony Monteiro appeals the district court’s affirmance of the Commissioner of the Social Security Administration’s decision denying him social security disability and supplemental income benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

The Commissioner failed to provide “clear and convincing reasons”1 for rejecting the uncontradicted opinions of a treating physician, Dr. Kuchinad, and an examining physician, Dr. Tinker.2 Although it is true, as the Government pointed out at oral argument, that the Commissioner need not “recite the magic words, T reject Dr. [so and so’s] opinion,” the Commissioner must cite evidence meeting the requisite standard for rejecting the physicians’ opinions.3 The Commissioner did not do so in this case. Thus, we cannot infer which reasons, if any, the Commissioner used to reject the opinions.4

We reverse and remand to allow the Commissioner to consider the weight to which the opinions are entitled and, if the opinions are entitled to little or no weight, to state clear and convincing reasons on the record for their rejection.5 Depending on the outcome of the Commissioner’s analysis, additional testimony from a vocational expert may be required.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation marks and citation omitted).

. The Administrative Law Judge’s decision became the final decision of the Commissioner when the Appeals Council declined to grant Monteiro's request for review. See 20 C.F.R. § 404.981 (1991). Accordingly, we refer to the decision as the Commissioner’s,

. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

. id.

. Lester, 81 F.3d at 830.

Concurring Opinion

RAWLINSON, Circuit Judge,

concurring in part, and concurring in result.

I agree with the result reached by the majority, reversing and remanding this matter for the administrative law judge (ALJ) to provide “clear and convincing reasons” for rejecting the opinion of Dr. Kuehinad, a treating physician.

I write separately because I part company with the majority disposition’s similar conclusion as to Dr. Tinker. As a psychologist, Dr. Tinker was not qualified to render a disability opinion addressing a combination of mental and physical impairment. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1202 n. 2 (9th Cir. 2001) (Recognizing that “[ujnder certain circumstances, a treating physician’s opinion on some matter may be entitled to little if any weight. This might be the case, for instance, if the treating physician ... offers an opinion on a matter not related to her or his area of specialization.” Citing 20 C.F.R. § 404.1527(d)(5)). Dr. Tinker offered no disability opinion predicated upon mental impairments, the only impairments he was qualified to address. As a result, the ALJ had no obligation to provide reasons for rejecting an opinion that Dr. Tinker was not qualified to give.

I would reverse and remand, but only for the ALJ to give clear and convincing reasons for rejecting the opinion of Dr. Kuehinad.

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