Fox v. Colvin

Filing 30

ORDER: (1) Adopting 27 Report and Recommendation; (2) Granting Plaintiff's 16 Motion for Summary Judgment; (3) Denying Defendant's 18 Motion for Summary Judgment; and (4) Remanding for Further Proceedings. Signed by Judge Roger T. Benitez on 9/12/2017.(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.: 3:16-cv-01401
Plaintiff,

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v.

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ORDER:

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.1

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(I) ADOPTING REPORT AND
RECOMMENDATION;
(2) GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT;

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(3) DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT; and

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(4) REMANDING FOR FURTHER
PROCEEDINGS

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Plaintiff Alethea Elin Fox filed this action seeking judicial review of the
Commissioner of Social Security’s denial of her application for disability insurance

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The Court substitutes Nancy A. Berryhill, the Acting Commissioner of Social Security,
for Carolyn W. Colvin, the former Acting Commissioner of Social Security, as Defendant
in this suit. See Fed. R. Civ. P. 25.
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benefits. Plaintiff filed a motion for summary judgment. (ECFNo. 16). Defendant filed

2 a cross-motion for summary judgment. (ECFNo. 18). The Honorable Andrew G.
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Schopler issued a thoughtful and thorough Report and Recommendation recommending

4 that this Court grant Plaintiffs motion, deny Defendant’s motion, and remand the case
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for further proceedings. (ECF No. 27). Defendant filed timely objections to the Report

6 and Recommendation (ECF No. 28), to which Plaintiff replied (ECF No. 29).
Where a party files a timely objection to a report and recommendation, the Court

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8 reviews de novo those portions of the report or specific proposed findings or
9 recommendations to which an objection is filed. 28 U.S.C. § 636(b)(1). Having
10 conducted a de novo review, the Court adopts the Report and Recommendation in full.
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BACKGROUND
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Plaintiff applied for disability benefits claiming she has been unable to work since

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June 1, 2007. The Administrative Law Judge (“ALJ”) found that Plaintiff suffered from

14 the severe impairment of affective disorder, but found that she has the residual functional
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capacity to perform a full range of work at all exertional levels but is limited to

16 completing simple, routine tasks in a nonpublic setting. The ALJ’s decision gave “great
17 weight” to the opinions of the state agency medical consultants, “some weight” to the
18 opinion of the psychiatric consultative examiner, and “little weight” to the opinions of
19 Plaintiffs two treating physicians, Dr. Wendy Khentigan and Dr. Clark Smith. (AR 2520 26).
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The issue before the Court is whether the ALJ articulated specific and legitimate

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reasons for rejecting the opinion of Dr. Smith. Dr. Smith is one of Plaintiff s treating

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psychiatrists. Plaintiff began seeing him on June 10, 2013. By the time of the

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administrative hearing, the ALJ had Dr. Clark’s treatment records from fourteen visits by

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Plaintiff. Those visits occurred on June 10, 2013, July 8, 2013, August 5, 2013,

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September 4, 2013, October 2, 2013, October 30, 2013, December 2, 2013, January 2,

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2014, February 3, 2014, March 3, 2014, April 2, 2014, April 30, 2014, May 25, 2014, and

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June 26, 2014. (See AR Exs. 12F & 13F). As these records reveal, Plaintiff visited Dr.
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Smith once approximately every thirty days for over a year. During her treatment, she

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took a mix of medications to treat her mental health and block opiate cravings. These

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medications included Subutex and Suboxone for the opiate cravings (AR 476, 487), and

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Klonopin, Lamictal, Gabapentin, Wellbutrin, Zoloft, and Saphris to treat her mental

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illnesses (AR 475, 480, 487). The records show that Plaintiff had good months and bad

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months. In some months, she reported feeling better with decreased depression and no

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anger, mania, or mood swings. (See AR 477, 480). In other visits, she reported feeling

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“really depressed,” “overwhelmed, 99 U stressed out,” and “scared to go outside.” (See AR

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478-80).

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On November 8, 2013, Dr. Smith completed a “Mental Impairment Residual

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Functional Capacity Questionnaire.” He noted that she has “[decreased]

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focus/concentration/ability to concentrate, with scattered & disjointed thought process.”

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(AR 487). In a check-box style form, he indicated that Plaintiff has “pervasive loss of

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interest [in] most activities,” “blunt, flat or inappropriate affect,” “mood disturbance,”

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“difficulty thinking or concentrating,” “persistent disturbances of mood or affect,”

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“emotional withdrawal or isolation,” “bipolar syndrome with a history of episodic periods

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manifested by a full symptomatic picture of both manic and depressive syndromes,

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currently characterized by either or both syndromes,” “emotional lability,” “easy

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distractibility,” and “oddities of thought, perception, speech or behavior.” (AR 488). He

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further noted that she has “moderate” restrictions on her activities of daily living,

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“moderate” difficulties in maintaining social functioning, “marked” difficulties in

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maintaining concentration, persistence, or pace, and “one or two” episodes of

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decompensation within a 12-month period. (AR 497).

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In assessing mental abilities needed to do unskilled work, Dr. Smith reported that

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Plaintiff was “unable to meet competitive standards” in eleven out of fifteen categories,

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such as “understand and remember short and simple instructions,” “maintain attention for

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two hour segments,” and “make simple work-related decisions.” (AR 489). In the

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remaining four categories—“maintain regular attendance and be punctual within
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customary, usual strict tolerances,” “ask simple questions or request assistance,” “get

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along with co-workers or peers without causing them undue distraction or exhibiting

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behavioral extremes,” and “be aware of normal hazards and take appropriate

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precautions,”—Dr. Smith noted that Plaintiff is “seriously limited, but not precluded.”

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(Id.) Dr. Smith explained that Plaintiff has a “scattered & distracted thought process,

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unstable mood, [and] inability to tolerate stress.” (Id.) He opined that Plaintiff would be

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expected to miss more than four days of work per month because of her impairments.

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(AR 492).

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As noted, the ALJ accorded “little weight” to Dr. Smith’s opinion in the “Mental

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Impairment Residual Functional Capacity Questionnaire.” In rejecting his opinion, the

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ALJ wrote:

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The severity of the functional limitations assessed by Dr. Smith are
inconsistent with claimant’s medical records. Dr. Smith’s treatment records
reveal an insignificant treatment history with the claimant and conservative
psychiatric treatment. Additionally, Dr. Smith opines the claimant’s
impairments began in 2003; however, there is no evidence in the record to
support such a conclusion.

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(AR 26). Judge Schopler considered the ALJ’s reasons and found them neither specific

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nor legitimate.

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STANDARD OF REVIEW
An applicant may seek judicial review of a final agency decision pursuant to 42

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U.S.C. §§ 405(g), 1383(c)(3). An ALJ’s decision will be reversed by the reviewing court

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only if “it is based upon legal error or is not supported by substantial evidence.” Bayliss

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v. Barnhart, All F.3d 1211, 1214 n.l (9th Cir. 2005) (citation omitted). “Substantial

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evidence means more than a mere scintilla but less than a preponderance; it is such

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relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The Court must

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

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from the ALJ’s conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001);
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Desrosiers v. Sec ’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The

2 ALJ is responsible for determining credibility, resolving conflicts in medical testimony,
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and for resolving ambiguities.” Andrews, 53 F.3d at 1039. Where the evidence is

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susceptible to more than one rational interpretation, the ALJ’s decision must be upheld.

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Id at 1039-40. The Court may not reverse an ALJ’s decision on account of an error that

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is harmless. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

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DISCUSSION

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The medical opinion of a claimant’s treating physician is given “controlling

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weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic

10 techniques and is not inconsistent with the other substantial evidence in [the claimant’s]
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case record.” 20 C.F.R. § 404.1527(c)(2). When a treating physician’s opinion is not

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controlling, it is weighted accorded to factors such as length of the treatment relationship

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and the frequency of examination, the nature and extent of the treatment relationship,

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supportability, consistency with the record, and specialization of the physician. Id. §

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404.1527(c)(2)-(6).

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If a treating or examining physician’s opinion is contradicted by another doctor’s

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opinion, as here, an ALJ may only reject it by providing specific and legitimate reasons

18 that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
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Cir. 2005). “The ALJ can meet this burden by setting out a detailed and thorough

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summary of the facts and conflicting clinical evidence, stating his interpretation thereof,

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and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting

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Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).

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In this case, the ALJ set forth four reasons to reject Dr. Smith’s opinion: (1) the

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opinion’s inconsistency with Plaintiffs medical records, (2) Plaintiffs insignificant

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treatment history, (3) Plaintiffs conservative course of treatment, and (4) an unsupported

26 or incorrect statement by Dr. Smith that Plaintiffs impairments began in 2003. For
27 reasons explained more fully in the Report and Recommendation, the Court concludes
28 that none of the ALJ’s reasons withstand scrutiny. Plaintiff saw Dr. Smith monthly for
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over a year for psychotherapy. Such a history of treatment is not “insignificant.” Nor

2 was Plaintiffs treatment “conservative.” In addition to the monthly psychotherapy
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appointments, Dr. Smith treated Plaintiffs condition with a number of psychotropic

4 prescription medications. The ALJ does not point to any evidence to say that more
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aggressive treatment was recommended. Without farther explanation why the ALJ

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believes Plaintiffs treatment is “insignificant” and “conservative,” these conclusory

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assertions fall short of the “specific and legitimate reasons” standard.

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The ALJ also failed to explain his conclusory finding that Dr. Smith’s opinion is

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inconsistent with the overall medical record. See Trevizo v. Berryhill, 862 F.3d 987, 999

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(9th Cir. 2017) (rejecting ALJ’s “conclusory determination that the [treating physician’s]

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opinion was contradicted where “the ALJ pointed to nothing in... the clinical record that

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contradicted the treating physician’s opinion”). The Report and Recommendation notes,

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and Defendant’s Objection observes, that Plaintiff exhibited some improvement. But

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“[t]he ALJ failed to analyze the periods of improvement in the context of [Plaintiffs]

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treatment history to ensure that the improvement was not temporary.” Colter v. Berryhill,

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985 F. App’x 616, 617 (9th Cir. 2017) (citing Ghanim v. Colvin, 763 F.3d 1154,1164

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(9th Cir. 2014) (explaining that treatment records reflecting improvement “must be

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viewed in light of the overall diagnostic record”)).

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Finally, the ALJ rejects the opinion because “there is no evidence in the record to

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support” Dr. Smith’s statement that Plaintiffs impairments began in 2003. Even if the

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ALJ were correct, such a reason is insufficient to justify a complete rejection of Dr.

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Smith’s opinion. Nonetheless, as explained further in the Report and Recommendation,

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there is evidence in Dr. Smith’s treatment notes that Plaintiff claims disability since 2003.

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Accordingly, the Court overrules Defendant’s objections and adopts the Report and

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Recommendation in its entirety.
CONCLUSION
The Court ADOPTS the Report and Recommendation (ECF No. 27). Plaintiffs
motion for summary judgment is GRANTED (ECF No. 16) and Defendant’s motion for
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summary judgment is DENIED (ECF No. 18). This case is REMANDED for further

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proceedings consistent with the Report and Recommendation.

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IT IS SO ORDERED.

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Dated:

HOK. ROTkR T. BENITEZ
United States District Judge

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