United States District Court, S.D. California
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
ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR
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
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.
IT IS SO ORDERED.
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