Monteiro v. Commissioner of the Social Security Administration

130 F. App'x 93

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2005
• Docket: No. 03-35566; D.C. No. CV-02-00916-HJF
• Status: Published

Opinions

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.

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

2 . 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,

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

4 . id.

5 . Lester, 81 F.3d at 830.