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September 16, 2005.

ROBYND L. OJALA, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: DANA M. SABRAW, District Judge

Plaintiff Robynd L. Ojala filed a Complaint for Judicial Review of the Social Security Commissioner's determination that she was not entitled to disability benefits. The Court referred the matter to United States Magistrate Judge Ruben B. Brooks for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(c)(1)(C). Thereafter, both parties filed motions for summary judgment. The Magistrate Judge recommends that the Court affirm the Commissioner's decision to give less weight to the opinion of Plaintiff's treating physician, but remand for further proceedings concerning her seizures.

Although neither party has objected to the Report and Recommendation, the Court has read the pleadings, reviewed the medical evidence in the administrative record, and has considered the applicable case law. "The court's power to `accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate' exists whether objections have been filed or not. The district court must decide for itself whether the magistrate's report is correct." Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983) (quoting 28 U.S.C. § 636). "The Commissioner's decision to deny benefits will be overturned if it is not supported by substantial evidence or is based on legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (quotation marks and citations omitted). The Court has considered the Administrate Law Judge's (ALJ) decision, and the Magistrate's Report evaluating the Plaintiff's claims of error. The Report is extremely thorough. The Magistrate carefully analyzed the specific issues in detail, and evaluated the medical evidence to determine if the findings were supported and legitimate.

  A. Weight of Treating Physician's Opinion

  "When the ALJ wishes to disregard the treating physician's opinion, `he must set forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence.'" Fair v. Bowen, 885 F.2d 597, 604-05 (9th Cir. 1989). As analyzed with care and set forth in detail in the Report and Recommendation, the ALJ set forth several reasons to give "some weight, but not great weight." to the opinion of Dr. Laura Vleugels. Tr. 15 (emphasis added). This is consistent with a substantive evaluation of the physician's relationship with the patient, for example, the duration and frequency of treatment. Ratto v. Secretary, Dep't Health & Human Servs., 839 F.Supp. 1415, 1425 (D. Or. 1993), cited with approval in Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003).

  The Court agrees with the Magistrate that certain of the ALJ's conclusions were not supported by substantial evidence. While some of the other reasons also have questionable merit, these are ultimately differences in interpretation of evidence, and that is the province of the administrative agency. The Court cannot substitute its judgment for that of the ALJ, Flaten v. Secretary of Health and Human Serv, 44 F.3d 1453, 1457 (9th Cir. 1995), and "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ("The ALJ is responsible for determining credibility and resolving conflicts in medical testimony. The ALJ is likewise responsible for resolving ambiguities.") (citations omitted); accord Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) ("If the evidence can reasonably support either affirming or reversing the Commissioner's decision, this panel may not substitute its judgment for that of the Commissioner."). In any event, it is clear that there was one fatal flaw regarding Dr. Vleugels' opinion of Plaintiff's mental, and physical, impairments — the lack of supporting documentation. The ALJ correctly noted that Dr. Vleugels' diagnosis was not supported by treating records, by objective medical tests, conclusions after a comprehensive mental status evaluation, or by contemporaneous evidence other than Plaintiff's statements. The reason for this failure of underlying evidence is that Plaintiff's counsel had requested the records from UCSD but the residents were too busy to provide them. Tr. 37. This is unfortunate as Plaintiff had been receiving treatment there for a year, and this was the most current and the most consistent treatment in Plaintiff's troubled past. Nonetheless, it is a legitimate reason to give less weight to Dr. Vleugels' opinion.

  B. Remand for Consideration of Plaintiff's Seizures

  The Court adopts the Magistrate's recommendation that the matter be remanded for further proceedings on Plaintiff's seizures. The Report carefully details the reasons for this conclusion, and the Court agrees with that analysis. In particular, the Court notes that Plaintiff was scheduled for a a neurology exam at USCD on November 26 — two days after the administrative hearing. Tr. 36. At very least, ALJ should have kept the record open until those test results were received. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).

  In sum, the R&R properly found the ALJ's decision to give less weight to the treating physician's opinion was supported by substantial evidence but not the finding that Plaintiff's seizures are controlled with medication. The Court DENIES IN PART AND GRANTS IN PART Plaintiff's motion for remand and/or reversal [Doc. No. 13]; and GRANTS IN PART AND DENIES IN PART Defendant's cross motion for summary judgment [Doc. No. 15]. The Court hereby ADOPTS the Magistrate Judge's Report and Recommendation [Doc. No. 18] and remands to the Social Security Administration for further proceedings consistent with that Report.



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