Fox v. Colvin

Filing 27

REPORT AND RECOMMENDATION on Summary Judgment Motions. The parties have until August 14, 2017, to object to this order. A party may respond to any objection within 14 days of being served with it. Signed by Magistrate Judge Andrew G. Schopler on 7/31/2017.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Alethea Elin Fox,

Case No.: 16-cv-1401-BEN-AGS
Plaintiff,

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v.

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REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS

Nancy A. Berryhill,

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Defendant.

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This Social Security case turns on the treating physician rule, which generally

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accords a treating doctor’s opinion “controlling weight.” The two treating physicians here

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believe that plaintiff’s mental health conditions render her disabled. The issue is whether

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the Administrative Law Judge supplied sufficient reasons to reject those opinions.

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BACKGROUND

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In 2012, Alethea Elin Fox applied for disability insurance benefits based on a variety

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of mental health problems. State agency medical consultants denied her application twice

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the next year, on initial review and reconsideration. (AR 16.) Those consultants analyzed

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records from treating psychiatrist Dr. Wendy Khentigan, but none from treating

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psychiatrist Dr. Clark Smith, who had just begun seeing Fox. (AR 127, 131, 472-80.) By

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Fox’s 2014 hearing, however, the Administrative Law Judge had the entire treatment

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history, including a year’s worth of Dr. Smith’s treatment notes. The ALJ ultimately found
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that Fox suffered from a severe mental health impairment known as affective disorder, but

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that it was not disabling. (AR 18, 29.) In so ruling, he gave “great weight” to the 2013

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analysis of the state agency medical consultants and “some weight” to a consulting

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psychiatric examiner’s opinion—all of whom found her able to work. (AR 25-26.) On the

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other hand, he assigned “little weight” to the opinions of Fox’s treating psychiatrists, who

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both believed her mental health issues were serious enough to force her to miss more than

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four days of work per month. (AR 26, 486, 492.)
Fox appeals, claiming that the ALJ improperly disregarded her two treating doctors’

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opinions as well as her own testimony.

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DISCUSSION
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Treating Physician Rule

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If a treating physician’s opinion is well-supported and consistent with the rest of the

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record, it must be given “controlling weight.” 20 C.F.R. § 404.1527(c)(2). When the

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treating physician’s opinion is contradicted by another doctor, as here, “an ALJ may only

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reject it by providing specific and legitimate reasons that are supported by substantial

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evidence.” Trevizo v. Berryhill, ___ F.3d ___, No. 15-16277, 2017 WL 2925434, at *7

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(9th Cir. July 10, 2017) (citation omitted). “The ALJ can meet this burden by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Id. (citations omitted).

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The Court first addresses the reasons the ALJ rejected Dr. Smith’s treating-physician
opinion, which are set forth below.

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1. Inconsistent with Medical Records

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The ALJ gave “little weight” to Dr. Smith’s opinion, in part, because he found it

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“inconsistent with claimant’s medical records.” (AR 26.) But the ALJ provides no analysis

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for this conclusion whatsoever. He certainly failed to set out any “conflicting clinical

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evidence, stat[e] his interpretation thereof, and mak[e] findings.” Trevizo, 2017 WL

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2925434, at *7 (citations omitted); see also id. at *8 (rejecting ALJ’s “conclusory

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determination that [the treating doctor’s] opinion was contradicted” where “the ALJ
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pointed to nothing . . . in the clinical record that contradicted the treating physician’s

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opinion”).

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Ignoring this fatal oversight for the moment, this Court has scoured the clinical

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history and identified instances when Fox may have been well enough to work. Indeed,

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defendant argues that “Dr. Smith’s own treatment notes showed improvement and normal

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findings inconsistent with his opinion,” including notations of improved function on at

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least five separate occasions during one year. (ECF No. 18-1, at 6-7.) But the Ninth Circuit

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has repeatedly warned that sporadic stretches of progress do not necessarily undermine a

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mental-health disability finding, as psychiatric symptoms naturally wax and wane. See,

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e.g., Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“Cycles of improvement and

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debilitating symptoms are a common occurrence, and in such circumstances it is error for

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an ALJ to pick out a few isolated instances of improvement over a period of months or

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years and to treat them as a basis for concluding a claimant is capable of working.”

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(citations omitted)). The ALJ must interpret progress in the context of the overall clinical

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course and “with an awareness that improved functioning while being treated and while

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limiting environmental stressors does not always mean that a claimant can function

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effectively in a workplace.” Id. (citation omitted).

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The ALJ’s conclusory assertion fails this standard and thus is neither specific nor
legitimate.

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2. Insignificant Treatment History

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Next, the ALJ discounted Dr. Smith’s opinion because his “treatment records reveal

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an insignificant treatment history[.]” (AR 26.) The ALJ fails to mention that, before

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offering his opinion, Dr. Smith treated Fox six times in under five months (and they had

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14 sessions during the full year of treatment). (AR 473-80, 492.) Nor does the ALJ say

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why he deems this history insignificant. Since shorter treatment periods have passed

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muster, this conclusion required some explanation. See Colcord v. Colvin, 91 F. Supp. 3d

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1189, 1196 (D. Or. 2015) (rejecting “short treatment history” as a rationale for discounting

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a treating psychiatrist’s opinion when the treatment lasted “three months” and at the time
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of the opinion the doctor was “meeting with plaintiff on a bi-weekly basis”). Indeed, one

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might ask: If Dr. Smith’s opinion cannot be trusted after six sessions, then how can the

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ALJ give so much more weight to the opinions of the agency consultants (who never saw

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Fox) and the examining physician (who saw Fox once, but never treated her)? See Gottuso

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v. Colvin, No. SACV 12-01705-MAN, 2014 WL 1286221, at *8 (C.D. Cal. Mar. 28, 2014)

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(criticizing ALJ who found that the opinion of a treating physician who had “significant

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gaps in his treatment of [plaintiff]” was entitled to “little weight,” without explaining why

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“the lack of any treatment history had no effect on the weight afforded to the opinions of

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the nontreating doctors”). Thus, the ALJ’s treatment-history point is also insufficient.

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3. Conservative Treatment

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According to the ALJ, Dr. Smith’s “conservative psychiatric treatment” of Fox

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belied his pessimistic assessment of her ability to work. “While conservative treatment

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records are generally ‘sufficient to discount a claimant’s testimony regarding severity of

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an impairment,’ they are not generally relied upon to discount the opinion of the treating

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physician.” Goucher v. Colvin, No. C-14-3009 EMC, 2015 WL 4051976, at *5 (N.D. Cal.

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July 2, 2015) (quoting Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); other citation

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omitted). At any rate, it is not clear that Fox’s treatment—including a number of

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psychotropic prescription medications—can fairly be characterized as “conservative.” See

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Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (suggesting that a “regimen

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of powerful pain medications and injections” was not “conservative treatment”). At a

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minimum, the ALJ could not rely on this ground without first demonstrating that “more

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aggressive treatment options are appropriate or available.” Id.; cf. Chong v. Colvin,

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No. CV 13-1044-SP, 2013 WL 6633073, at *7 (C.D. Cal. Dec. 16, 2013) (requiring that

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“at a minimum” ALJs must explain their treatment-history criticisms). Since the ALJ never

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did so, this reason also falls short.

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4. Unsupported or Incorrect Statement

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Finally, the ALJ criticizes a supposedly incorrect fact: “. . . Dr. Smith opines the

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claimant’s impairments began in 2003; however, there is no evidence in the record to
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support such a conclusion.” (AR 26.) But the ALJ is wrong. Dr. Smith’s July 8, 2013

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treating notes—which are evidence in the record—reflect that Fox has been “Disabled x 10

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yrs [that is, since 2003].” (AR 474; cf. AR 453-54 (Dr. Maris states that symptoms began

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in the 1980s “between [ages] 13 and 15”); AR 486 (Dr. Khentigan notes that “symptoms

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started at age 13 [around 1981]”).) It is unclear where Dr. Smith obtained that information;

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perhaps it was from other medical records or from Fox herself (which is still evidence).

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Regardless, there was record evidence to support the onset date that Dr. Smith mentioned,

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so this was not a legitimate reason to give his opinion little weight. Indeed, even if

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Dr. Smith had made a single mistake on a date, that would not necessarily justify rejecting

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his treating-physician opinion wholesale.

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Because none of the ALJ’s reasons withstand scrutiny, Dr. Smith’s opinion should

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have been given controlling weight and the case must be remanded. This is especially true

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given the timing of the ALJ’s preferred expert opinions. None of those experts reviewed

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Fox’s yearlong course of treatment with Dr. Smith, which occurred almost entirely after

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they submitted their expert reports. As the Court concludes that the ALJ’s treatment of

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Dr. Smith’s treating-physician opinion is dispositive, it need not address Fox’s other

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arguments.

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B.

Remedy

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“The decision whether to remand a case for additional evidence, or simply to award

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benefits, is within the discretion of the court.” Trevizo, 2017 WL 2925434, at *13

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(alterations and citation omitted). Courts generally remand for calculation of benefits

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when: (1) the record is “fully developed,” (2) the ALJ failed to provide “legally sufficient

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reasons for rejecting evidence,” and (3) crediting the rejected evidence as true, the ALJ

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would be required to find the claimant disabled. Id. (citation omitted). But when “the record

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as a whole creates serious doubt as to whether the claimant is, in fact, disabled,” the court

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should remand for further proceedings. Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir.

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2014). “If additional proceedings can remedy defects in the original administrative

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proceeding, a social security case should be remanded for further proceedings.” Trevizo,

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2017 WL 2925434, at *13 (alterations and citation omitted).

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Fox has strong arguments for disability benefits, and two treating psychiatrists are

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convinced she is disabled. But the administrative record—which already spans 492

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pages—could be further developed. While Dr. Smith’s opinion may ultimately carry the

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day, his treating relationship with Fox began after the insured period ended. This fact may

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not undermine Dr. Smith’s conclusions about Fox’s longstanding disabilities, but it must

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be explored. Also, many of Dr. Khentigan’s notes, which bear on the analysis, are illegible

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and should be deciphered. (See, e.g., AR 357-68.) At all events, these concerns raise

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sufficient doubt about the correct outcome to warrant further proceedings.

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CONCLUSION

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Thus, the Court recommends that Fox’s summary judgment motion (ECF No. 16)

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be GRANTED, defendant’s cross-motion for summary judgment (ECF No. 18) be

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DENIED, and the case be remanded for additional evidence. The parties have until

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August 14, 2017, to object to this order. See Fed. R. Civ. P. 72(b)(2). A party may respond

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to any objection within 14 days of being served with it. Id.

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Dated: July 31, 2017

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