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Gordon v. Colvin

United States District Court, C.D. California, Eastern Division

February 17, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ANDREW J. WISTRICH, Magistrate Judge.

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts, which are undisputed, are summarized in the Joint Stipulation. [See JS 2]. In a written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") found that plaintiff had severe impairments consisting of panic and anxiety disorder with intermittent agoraphobia. [Administrative Record ("AR") 13; see JS 2]. The ALJ found that plaintiff's impairments resulted in nonexertional limitations that precluded her from performing her past relevant work, but that she retained the residual functional capacity ("RFC") to perform jobs available in significant numbers in the national economy. [AR 20-21]. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the date of the ALJ's decision. [AR 21].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin. , 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart , 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin , 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel , 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas , 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir.1999)).


Treating physician's opinion

Plaintiff contends that the ALJ erred in evaluating the opinion of her treating physician Evan George Tzakis, M.D. at Kaiser Permanente's Canyon Crest Behavioral Medical Unit. [See JS 3-16].

The ALJ noted that plaintiff began treatment with Dr. Tzakis in April 2009 for impaired concentration, anxiety, panic attacks, and inability to leave the house. [AR 17]. Dr. Tzakis's treatment notes indicate that he completed "Documentation of Medical Impairment" forms concluding that plaintiff was unable to work from April 28, 2009 through November 11, 2009 due to panic disorder with agoraphobia and depression. [See AR 18, 340, 351, 404, 411]. The ALJ rejected Dr. Tzaki's opinion that plaintiff was disabled in favor of the opinion of the consultative psychiatric examiner, Dr. Bagner, and the nonexamining state agency physicians. [AR 17-19]. The ALJ found that plaintiff retained the RFC to perform work at all exertional levels, with the following nonexertional limitations: she would be able to sustain concentration, persistence and pace, in at least two hour blocks of time to complete a normal workday, but she would be off task about 10% of the workday due to interference from psychologically based symptoms. She would be able to remember and carry out both complex and detailed tasks and respond appropriately to coworkers and supervisors, but she would need to work in a nonpublic work environment not involving fast-paced production requirements or assembly line work such as that involving a conveyor belt. [AR 14-15].

In general, "[t]he opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant." Orn v. Astrue , 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater , 157 F.3d 715, 725 (9th Cir. 1998)); see Tonapetyan v. Halter , 242 F.3d 1144, 1148 (9th Cir. 2001). A treating physician's opinion is entitled to greater weight than those of examining or non-examining physicians because "treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual...." Edlund v. Massanari , 253 F.3d 1152, 1157 (9th Cir. 2001) (quoting Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996) and citing Social Security Ruling ("SSR") 96-2p, 1996 WL 374188); see 20 C.F.R. ยงยง 404.1502, 404.1527(d)(2), 416.902, 416.927(d)(2).

If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Orn , 495 F.3d at 632; Tonapetyan , 242 F.3d at 1148-1149 (9th Cir. 2001); Lester v. Chater , 81 F.3d 821, 830-831 (9th Cir. 1995).

The ALJ's stated reasons for rejecting Dr. Tzakis's controverted treating source opinion were not specific, legitimate, and supported by substantial evidence in the record. First, the ALJ noted that the "Documentation of Medical Impairment" ("DMI") forms were mentioned in the treatment notes but were not included in the record. The omission of the DMI forms from the record, without more, is not a legitimate reason for rejecting Dr. Tzakis's disability opinions. Included in the record before the ALJ were Dr. Tzakis's well-organized, detailed electronic treatment reports for the period from April 2009 through October 2010. [AR 283-415]. Dr. Tzakis's treatment reports include plaintiff's reported symptoms, her response to medications and other treatment, mental status examination results, Dr. Tzakis's diagnoses (panic disorder with agoraphobia and depression) and assessment, his treatment plan, and notes from other clinicians who participated in plaintiff's care either in tandem with Dr. Tzakis or under his supervision, such as registered nurses and psychiatric social workers. [See AR 282-413]. Also included in the treatment reports are Dr. Tzakis's narrative statements that plaintiff was disabled or unable to work and references to giving plaintiff DMI forms reflecting that assessment. [See, e.g., AR 334 ("Plaintiff remains disabled with panic and agoraphobia. Documentation of Medical Impairment form given."); AR 340 ("Agoraphobia remains disabling. Documentation of Medical Impairment Form given."); AR 386 ("Documentation of Medical Impairment form with no work til May 3, then restricted to 4 hours workdays until May 10."); AR 404 (noting that Dr. Tzakis issued a Documentation of Medical Impairment form until plaintiff's planned May 29, 2009 office visit which authorized her to be "[o]ff work" until that date); AR 411 ("Condition has worsened. Patient remains disabled. Documentation of Medical Impairment form given until next visit June 26, but with comment that plaintiff is expected to be disabled until September.")]. Plaintiff also submitted additional treatment reports from Dr. Tzakis to the Appeals Council. [See AR 4, 414-422]. The absence of the DMI forms from the record did not prevent the ALJ from discerning or evaluating the evidentiary basis for Dr. Tzakis's disability opinions because both his opinion, and the clinical evidence on which he relied, were contained in the treatment reports.

Second, the ALJ drew negative inferences about Dr. Tzakis's motivation and the evidentiary basis for his disability opinion that were not warranted by the record. After noting that the DMI ...

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