McCord v. Colvin

Filing 26

ORDER adopting Report and Recommendations 20 . It is ordered that the Report and Recommendation of Magistrate Judge Markovich is ADOPTED in its entirety. It is further ordered that the ruling of the Commissioner is REVERSED and this matter is REMANDED for an award of benefits to the Plaintiff and that this action is DISMISSED and closed. The Clerk of this Court shall enter final judgment accordingly. Signed by Senior Judge David C Bury on 5/19/2016. (See Attached Order)(SIB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Inga K. McCord,
Plaintiff,
vs.

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Carolyn W. Colvin,

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Defendant.

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CV-14-2411-TUC-DCB
ORDER

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Pending before this Court is the Report and Recommendation (R&R) of

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Magistrate

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Response to Objections. After conducting a de novo review of the record,

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this Court will: adopt the Report and Recommendation, reverse the ruling

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of the Commissioner, and remand for an award of benefits.

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The

Judge

Court

Markovich,

will

adopt

Plaintiff’s

in

its

Objections

entirety

the

and

Defendant’s

Magistrate

Judge’s

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thoroughly documented recitation of the procedural and factual history.

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(Doc. 20, 1- 34.)

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STANDARD OF REVIEW

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When objection is made to the findings and recommendation of a

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magistrate judge, the district court must conduct a de novo review.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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OBJECTIONS

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A. Defendant objects to the R&R’s re-weighing of conflicting evidence
and the substitution of his judgment for that of the Commissioner

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Defendant objects to the R&R’s contravention of this limited scope

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of

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Commissioner. The R&R reweighed the evidence by noting the medical

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opinions in this case “somewhat contradict” the opinion of a treating

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physician, Dr. Bupp, but the opinions are “not entirely inconsistent”

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with that opinion. (Doc. 20 at 39.) The R&R also found fault with the

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Administrative Law Judge’s (ALJ’s) apparent failure “to acknowledge Dr.

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Bupp’s OCD diagnosis,” despite Plaintiff never having alleged her OCD was

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a

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“independent review” involves an improper substitution of judgment.

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Defendant objects to the R&R’s determination that the ALJ “summarily

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dismissed” Dr. Bupp’s opinion as “too restrictive and not supported by

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the objective evidence” because Plaintiff received “only modest treatment

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for depressed mood.” (Doc. 20 at 39.) The ALJ did not summarily dismiss

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Dr. Bupp’s opinion. Defendant objects to the R&R’s claim that the “ALJ

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failed

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§404.1527(c).” (Doc. 20 at 42.) To the contrary, the ALJ specifically

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stated in the hearing decision that “I have also considered opinion

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evidence in accordance with the requirements of 20 C.F.R. §404.1527 and

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SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Tr. 22.)

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R&R’s determination that the ALJ’s adverse credibility finding was

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erroneous. Here, the ALJ’s interpretation of the evidence was reasonable

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and consistent with the regulations and circuit authority. Defendant

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objects to the R&R second-guessing of the ALJ’s rationale.

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review

severe

to

and

the

impairment

consider

substitution

in

any

the

of

of

first

the

-2-

his

judgment

place.

factors

(Doc.

for

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outlined

that

at

in

of

40.)

20

the

This

C.F.R.

Defendant objects to the

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Plaintiff responds that the Magistrate Judge was well-aware of the

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substantial-evidence standard of review, including elements of that

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standard the Commissioner alleges that he did not apply. (Doc. 20 at 35-

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36 (citing 42 U.S.C. § 405(g) and numerous Ninth Circuit cases explaining

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and applying the substantial-evidence standard of review).) Contrary to

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the

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Magistrate Judge understood that on substantial-evidence review a “‘court

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must consider the record as a whole, weighing both evidence that supports

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and evidence that detracts from the Secretary’s conclusion.’” (Doc. 20

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at 35 (quoting Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

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2001)).) Further, the Magistrate Judge’s reference to his “independent

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review” is a reference to his very responsibility to prepare a report and

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recommendation.

Commissioner’s

view

that

he

did

not

understand

§

405(g),

the

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In August 2009, treating psychiatrist Dr. Bupp opined that Plaintiff

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was much more limited than the ALJ found. (AR. 405-06.) The Magistrate

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Judge correctly recommended that the Court hold that the ALJ “erred in

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failing to provide legally sufficient reasons for rejecting Dr. Bupp’s

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opinion.”

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specialist’s opinion that the regulations expressly require giving “good

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reasons” for rejecting, see 20 C.F.R. § 404.1527(c)(2) (201), and that

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longstanding Circuit law requires clear-and-convincing (or specific-and-

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legitimate) reasons for rejecting, see Garrison v. Colvin, 759 F.3d 995,

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1012-13 & nn.10-11 (9th Cir. 2014). The Magistrate Judge relied on

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Circuit treating-physician law and the regulations. (Doc. 20 at 37-39

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(applying, e.g., Garrison, 759 F.3d at 1012).)

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correctly

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argument the ALJ failed to mention other physicians when rejecting Dr.

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(Doc.

20

at

recommended

37.)

The

rejecting

case

the

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at

bar

concerns

a

treating

The Magistrate Judge

Commissioner’s

baseless

waiver

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Bupp’s opinions. (Doc. 20 at 39; Doc. 24 at 3-4.) The Magistrate Judge

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explained why the ALJ did not provide the required clear-and-convincing

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reasons to find Plaintiff not credible. (Doc. 20 at 42-49.)

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The R&R correctly reasons that if the ALJ believed that Dr. Bupp’s

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opinion was contradicted by the examining and consulting physician

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opinions, then the ALJ was required to give specific and legitimate

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reasons supported by substantial evidence for rejecting Dr. Bupp’s

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opinion. The ALJ failed to meet this burden when she summarily rejected

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Dr. Bupp’s opinion as “too restrictive and not supported by the objective

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evidence” and noted that

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mood.” (AR 21); see Garrison, 759 F.3d at 1012 (“The ALJ must do more

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than state conclusions. He must set forth his own interpretations and

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explain why they, rather than the doctors’, are correct.”). Further,

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in noting that she accorded “less weight” to Dr. Bupp’s opinion because

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it was too restrictive, the ALJ failed to address the factors set out in

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20 C.F.R. 404.1527(c). Finally, the ALJ erred in failing to consider Dr.

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Bupp’s OCD diagnosis.

“received only modest treatment for depressed

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In sum, the ALJ’s conclusory dismissal of Dr. Bupp’s opinion as “too

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restrictive and not supported by the objective evidence” is wholly

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inadequate to meet the required standards of either clear and convincing

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reasons or specific and legitimate reasons supported by substantial

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evidence. (AR 21). In addition, the ALJ failed to consider any of the

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factors outlined in 20 C.F.R. 404.1527(c). The R&R properly found that

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the ALJ erred in rejecting Dr. Bupp’s opinion and the ALJ failed to

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provide “legally sufficient reasons for rejecting” Dr. Gray’s opinion.

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B. Defendant objects to the improper application of the credit-as-true
rule to award benefits

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Defendant

argues

that

multiple

inconsistencies

in

the

record

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preclude

an

immediate

award

of

benefits.

These

different

opinions

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underscore that the record is disputed in this case and remand is

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required to resolve these issues. Moreover, the R&R’s conclusion that the

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ALJ’s findings were inadequate or not sufficiently specific amounts to

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a concession that remand is the appropriate remedy. In light of the

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inconsistencies

and

conflicts

in

the

record

that

require

further

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administrative

proceedings,

this

Court

cannot

proceed

to

the

next

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question, whether the ALJ would be required to find Plaintiff disabled

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if Dr. Bupp’s opinion and Plaintiff’s testimony were credited as true.

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In response, Plaintiff argues that an ALJ’s failure to provide

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legally sufficient reasons for rejecting evidence does not automatically

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require a remand for readjudication, but instead is a condition precedent

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to

finding

the

plaintiff

disabled

on

the

existing

record.

The

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Commissioner incorrectly argued that because the ALJ rendered an adverse

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credibility finding, a remand for readjudication is appropriate. (Doc.

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24 at 7.) Just because an ALJ found a claimant not credible does not

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somehow mean that a remand for readjudication is required or warranted.

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The credit-as-true doctrine applies when a court holds that an ALJ does

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not provide clear-and-convincing reasons for finding a claimant not

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credible. While the Commissioner maintained that there are inconsistent

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medical opinions, the Commissioner did not present an argument that

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specific

medical

opinions

provide

clear-and-convincing

reasons

(or

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specific-and-legitimate reasons) for rejecting Dr. Bupp’s opinions. (Doc.

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24 at 6.) This is not a case when additional vocational-expert testimony

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is needed to ascertain whether Plaintiff was disabled. The Magistrate

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Judge recommends finding that Plaintiff was disabled because (1) the ALJ

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did not provide clear-and-convincing reasons for rejecting the opinions

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of a treating specialist and Plaintiff’s statements and

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applying the Circuit’s test for the choice of judicial remedy in such

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instance. In other words, those expert medical opinions improperly

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rejected may be credited as true and may be the basis for a finding of

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disability.

(2) after

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The Ninth Circuit recently reaffirmed the legal framework for a

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finding of disability based on the credit-as-true rule. Dominguez v.

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Colvin, 808 F.3d 403, 407-408 (9th Cir. 2015). Before a court can impose

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such

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prerequisites have been met. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th

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Cir. 2014) (discussing Garrison v. Colvin, 759 F.3d 995(9th Cir. 2014)).

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First, the court must first determine that the ALJ made a legal error,

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such as failing to provide legally sufficient reasons for rejecting

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evidence. Dominguez, 808 F.3d at 407. This threshold requirement is met

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in this case if the conclusion is that the ALJ improperly rejected Dr.

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Bupp’s and Plaintiff’s testimony. The court must then “assess whether

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there are outstanding issues requiring resolution before considering

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whether to hold that the claimant's testimony is credible as a matter of

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law.” Treichler, 775 F.3d at 1105. If such outstanding issues do exist,

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the court cannot deem the erroneously disregarded testimony to be true;

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rather, the court must remand for further proceedings. Id. at 1105–06.

a

remedy,

there

must

be

a

determination

of

whether

certain

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This Court agrees with the R&R that the opinions of treating medical

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experts were improperly disregarded and will credit them as true in this

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instance.

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Two treating physicians opined, without contradiction and

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after numerous objective clinical and diagnostic testing, that Plaintiff

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could not sustain work on a regular basis.

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Dr. Gray

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Plaintiff

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began

treatment

with

Dr.

Michael

Gray

in

2009

for

evaluation and treatment of alleged mold exposure.
On November 17, 2009 Plaintiff saw Dr. Gray and stated she
could not exercise 2 days in a row without having significant
fallout, and the same thing happens if she cleans her house 2
days in a row. (AR 512). She is unable to maintain a regular
40 hour work week without having significant increased
sickness, and Dr. Gray noted her absences were consistent with
her chronic fatigue immune dysfunction syndrome. Plaintiff
stated she had joint pain in her hands, knees, and hips on an
almost daily basis, and that is was not too severe and lasted
2–4 hours. Dr. Gray assessed: 1) fatigue; 2) restless leg
syndrome; 3) insomnia; and 4) asthma, unspecified. (AR 514).
On January 19, 2010 Dr. Gray saw Plaintiff and noted that she
continued to be significantly impaired and had hired a
housekeeper so she could get some exercise and not be fatigued
all the time. (AR 509). Dr. Gray assessed toxic effect of
nonmedicinal substance, and noted that she Plaintiff needed to
return to the lab because they did not complete all of the
tests. (AR 511).
(Doc. 20 at 6.)
On March 29, 2011 Plaintiff saw Dr. Gray and reported she
continued to be significantly impaired in her ability to
engage in gainful employment, household chores, and other
activities of daily living. (AR 487). She tried to take a
college course but had to drop out because of her illness. She
had been sick every other week recently and had taken several
courses of antibiotics, and stopped taking her sequestering
agents. She experienced moderate pain almost daily for 5–8
hours, had been sick 4 times in the last 2 months, and felt as
though she was doing a lot worse. (AR 488). Dr. Gray noted
that her labs from January showed her C4a level was in the
normal range, but because of the break in treatment he would
need to repeat labs because “these indirect markers of toxic
load may well have increased.” (AR 489). Dr. Gray made the
same assessment as at the February 28, 2011 appointment, with
the addition of toxic reaction.

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(Doc. 20 at 8.)In a letter dated May 11, 2010 Dr. Gray noted that he was

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Plaintiff’s treating physician for problems associated with excessive

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fatigue, asthma, mycotoxicosis, recurrent and frequent urinary tract

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infections, insomnia, restless legs syndrome, arthritis, and headaches.

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(AR 446). He opined that she was “unable to engage in gainful employment

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as a result of the symptoms including excessive fatigue associated with

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her clinical condition.” Dr. Gray further stated that Given the severity

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of

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fluctuate at times but is also extremely unpredictable in terms of the

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onset of exacerbation of her symptoms, it is a reasonable medical

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certainty that Inga K Plaintiff is unable to engage in gainful employment

her

clinical

condition,

understanding

that

her

condition

does

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and should be considered permanently impaired and totally disabled.

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a Fatigue RFC Questionnaire, Dr. Gray reported that Plaintiff suffered

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from moderately severe fatigue (seriously affecting ability to function),

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and that her fatigue frequently interfered with her attention

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concentration. (AR 664). Dr. Gray stated that Plaintiff experienced

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deficiencies of concentration, persistence, or pace often, and that she

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could not sustain work on a regular and continuing basis.

On

and

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Dr. Bupp

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Dr. Bupp has been Plaintiff’s treating psychiatrist since January

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1996. (AR 290).Dr. Bupp assessed major depressive disorder, recurrent,

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in

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obsessive compulsive disorder, moderate.

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12, 2010 and reported she was only “ok” and had a series of depressions.

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(AR 480). He observed that she was alert and oriented, mood was only

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fair, affect was ok, and memory was intact. He assessed major depressive

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disorder,

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moderate; and mold titers increased.

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OCD, and aspergillosis had a combined effect on Plaintiff’s functional

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partial

remission;

recurrent,

restless

in

partial

leg

syndrome,

and

Plaintiff saw Dr. Bupp on May

remission;

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moderate/severe;

restless

leg

syndrome,

Dr. Bupp noted that depression,

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capacity, and that her limitations could be expected to last for 12

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months or longer.

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In addition, the testimony of Plaintiff was improperly discounted

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and will be credited as true, to substantiate the Court’s finding of

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disability here.1

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Plaintiff testified at her hearing before the ALJ on July 18,
2011. She stated that she tries to walk her dog on a regular
basis for exercise, and that she drives to town twice a week
for grocery shopping. (AR 78). She traveled to Idaho to visit
her brother several times after his wife died. (AR 78, 86).
Plaintiff takes prescription medications for depression,
anxiety, sleep, acid reflux, and asthma, plus a lot of
vitamins and minerals, and Tylenol for restless legs and Advil
for headaches. (AR 79). On examination by her attorney,
Plaintiff stated that she forgets things more frequently than
she did in the past, and that she had a “lack of ability to
concentrate much diminished.” (AR 89). She reported that if
she tried to work as a programmer for several hours a day, she
“would run out of mental capabilities in about 50 percent the
time that I did ten years ago.” Plaintiff stated that she took
a lot of time off of work in 2007 because she was ill so
frequently, and used up all of her sick and vacation time. If
she tries to do housework for half a day, the next day she is
mentally drained and feels incapable of balancing her
checkbook, and her muscles ache badly. (AR 92–93). Plaintiff
testified that some days she can do the household finances,
but she doesn’t attempt to on days when she is very fatigued.
(AR 94). She was laid off of her job because she could not
work a 40-hour week, and then she got a new job but could not
work a full week because: “By about Wednesday I lost my
ability to solve problems anymore. By Thursday I would be
there, but I would really, really wish I could crawl under my
desk and lie down so I lost all productivity at that point.
Friday was typically just a nothing day.” (AR 94–95).
(Doc. 20 at 27.)
The Court finds no outstanding material issues precluding resolution
of disability at this time.

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In addition, the ALJ improperly failed to even mention the lay
witness statement by Plaintiff’s husband, which substantiates her
testimony.

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CONCLUSION

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After correctly concluding that the ALJ did not provide clear-and-

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convincing reasons or specific-and-legitimate reasons for rejecting

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treating medical opinions and after concluding that the ALJ did not

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provide clear-and-convincing reasons for finding Plaintiff not credible,

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the Magistrate Judge reviewed Circuit law and correctly recommended that

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under that law, the proper judicial remedy in this case is a finding of

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disability and an award of benefits. (Doc. 20 at 49-51.)

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Accordingly, after conducting a de novo review of the record,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
Markovich is ADOPTED in its entirety.

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IT IS FURTHER ORDERED that the ruling of the Commissioner is

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REVERSED and this matter is REMANDED for an award of benefits to the

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Plaintiff.

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IT IS FURTHER ORDERED that this action is DISMISSED and closed. The
Clerk of this Court shall enter final judgment accordingly.

DATED this 19th day of May, 2016.

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