Ferrando v. Commissioner of Social Security Administration, 449 F. App'x 610

Ferrando appeals a district court grant of summary judgment in favor of the Commissioner denying disability benefits under Titles II and XVI.
The court reviews for de novo error; denial stands unless not supported by substantial evidence or legal error.
Ferrando argues a subsequent disability award constitutes new evidence requiring remand for reconsideration.
The court addresses whether Ferrando waived merits and whether the treating psychiatrist’s opinion was properly weighed by the ALJ.
The opinion concludes the ALJ erred by discounting the treating psychiatrist and reverses and remands for a determination of when mental impairments rendered Ferrando disabled, likely after April 2005 and before July 27, 2007.
Concurrence notes disagreement on weight assigned to a treating psychiatrist and the treatment-history reasoning.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a later disability award constitute new evidence requiring remand?	Ferrando contends subsequent award necessitates remand due to new evidence.	Different medical evidence and time period allow reconciliation without remand.	Remand not required; subsequent award not new evidence.
Did Ferrando waive his merits arguments about ALJ Ramsey's decision?	Ferrando preserved opportunity to review validity of the order.	District court review suffices; treating source generally preferred.	Ferrando did not waive his merits arguments.
Was the treating psychiatrist properly afforded weight relative to other medical opinions?	Treating psychiatrist's opinion should carry significant weight given longitudinal care.	The treating psychiatrist’s single visit can yield lesser weight.	Majority faults the ALJ for insufficiently justifying discounting the treating psychiatrist; reverses and remands.
Did the ALJ properly rely on Ferrando’s treatment history and subjective complaints?	The record supports reliance on subjective complaints and treatment history to assess impairment.	Lack of early treatment justified discounting mental health claims.	The court finds error in discounting subjective complaints and orders remand.

Berry v. Astrue, 622 F.3d 1228 (9th Cir. 2010) (de novo review of substantial evidence standard)
Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001) (new evidence in disability cases with different medical evidence/time period)
Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010) (record can reconcile initial denial and subsequent award)
Whittaker Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir. 1992) (preserving appellate review on district court record)
Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294 (9th Cir. 1999) (critique of using lack of treatment to discredit mental complaints)
Nguyen v. Chater, 100 F.3d 1462 (9th Cir. 1996) (mental illness underreporting and rationale for treatment-seeking behavior)
Fair v. Bowen, 883 F.2d 597 (9th Cir. 1989) (evidence of lack of treatment as to discredit pain testimony)
Widmark v. Barnhart, 454 F.3d 1063 (9th Cir. 2006) (crediting treating source opinions where appropriate)
Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) (presumption of continuing non-disability after initial finding)
Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 2008) (ALJ may reject based on discredited self-reporting)
Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001) (longitudinal picture and weight of treating opinions)