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Overton v. Berryhill

United States District Court, S.D. California

March 27, 2018

LEE WESLEY OVERTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant[1].

          ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; (3) DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; (4) DENYING DEFENDANT'S MOTION FOR RECONSIDERATION; and (5) REMANDING FOR FURTHER PROCEEDINGS

          HON. ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.

         Plaintiff Lee Overtoil filed this action seeking judicial review of the Social Security Commissioner's denial of his application for disability insurance benefits. Plaintiff filed a motion for Summary Judgment. (Doc. No. 15.) The Commissioner filed a cross-motion for Summary Judgment. (Doc. No. 18.) On November 6, 2017, the Honorable Barbara L. Major issued a thoughtful and thorough Report and Recommendation ("Report") recommending that this Court grant Plaintiffs motion, deny the Commissioner's motion, and remand the case for further proceedings. (Doc. No. 21.) The Commissioner filed a timely motion for Reconsideration/Objection to the Report, (Doc. No. 22.)

         Where a party files a timely objection to a Report and Recommendation, the Court reviews de novo those portions of the report or specific proposed findings or recommendations to which an objection is filed. 28 U.S.C. § 636(b)(1). Having conducted a de novo review, the Court adopts the Report and Recommendation.

         BACKGROUND

         Plaintiff applied for Title II disability and disability insurance benefits claiming disability due to, among other impairments, post-traumatic stress disorder ("PTSD") and "chemical exposure" during operations in Saudi Arabia. Administrative Record (AR at 39, 167, 191.)[2] Plaintiff alleged the disability began on March 31, 2015 ("AOD"). (Id.) The claims were denied initially on August 4, 2015, and upon reconsideration on January 7, 2016, resulting in Plaintiffs request for an administrative hearing on January 14, 2016. (AR at 106-109, 113, 119.)

         At the hearing before Administrative Law Judge Robin L. Henrie ("ALJ") on June 9, 2016, Plaintiff and an impartial vocational expert, Victoria Ray, testified as to Plaintiffs alleged disability. (Id. at 36-74.) In a written decision dated August 24, 2016, the ALJ determined that Plaintiff was not disabled under section 216(i) and 223(d) of the Social Security Act. (Id. at 21-31.) On November 9, 2016, the Appeals Council found no basis for reviewing the ALJ's ruling, and the ALJ's decision became the final decision of the Commissioner. (Id. at 1-3.)

         On January 6, 2017, Plaintiff filed this action seeking judicial review by the federal district court. (Id.) In his motion, Plaintiff argues that the ALJ's residual functional capacity ("RFC") finding was not supported by substantial evidence and was the product of legal error. (Pl's Mot. at 15.) In support of this contention, Plaintiff asserts four arguments. First, Plaintiff argues that the "ALJ ignored the opinion of a treating source, Dr. Vargas, and thereby fail[ed] to provide 'specific and legitimate' reasons for discounting the opinion of a treating source." (Id. at 15.) Second, the "ALJ fail[ed] to account for moderate limitations in concentration, persistence, and pace by reducing Plaintiffs RFC to 'simple work', which thereby deprived the Step 5 determination of substantial evidence in support." (Id. at 20.) Third, the "ALJ's analysis of Plaintiff s 100% Veterans Administration ("VA") disability rating fail[ed] to 'accurately reflect the approaches taken' in the Social Security Administration ("SSA") and VA disability systems." (Id. at 24.) And finally, the ALJ failed to provide clear and convincing reasons for discounting Plaintiffs testimony regarding his alleged limitations. (Id. at 26.)

         On November 6, 2017, Magistrate Judge Barbara L. Major issued a thoughtful and thorough Report. (Doc. No. 21.)

         STANDARD OF REVIEW

         An applicant may seek judicial review of a final agency decision pursuant to 42 U.S.C. § 405(g), 1383(c)(3). An ALJ's decision will be reversed by the reviewing court only if "it is based upon legal error or is not supported by substantial evidence." Bayliss v. Barnhart, Ml F.3d 1211, 1214 n.l (9th Cir. 2005) (citation omitted). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The Court must consider the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039. Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. (Id. at 1039-40.) The Court may not reverse an ALJ's decision on account of an error that is harmless. Molina v. Astrue, 614 F.3d 1104, 111 (9th Cir. 2012).

         DISCUSSION

         Plaintiff argues the ALJ erred by (1) ignoring the opinion of a treating source, Dr. Vargas, and thereby fail[ed] to provide 'specific and legitimate' reasons for discounting the opinion of a treating source"; (2) failed to account for moderate limitations in concentration, persistence and pace by reducing Plaintiffs RFC to 'simple' work, which thereby deprived the Step 5 determination substantial evidence in support"; (3) the "ALJ's analysis of Plaintiff s 100% VA disability rating fail[ed] to 'accurately reflect the approaches taken' in the SSA and VA disability systems; and (4) failed to provide clear and convincing reasons for discounting Plaintiffs testimony regarding his alleged limitations.

         I. The ALJ Erred in Ignoring Dr. Vargas's Opinion

         Plaintiff assigns error to the ALJ's evaluation for failing to provide legally sufficient reasons for ignoring Dr. Vargas's opinion while determining Plaintiffs RFC. Specifically, Plaintiff contends the "ALJ ignored the opinion of a treating source, Dr. Vargas, and thereby fail[ed] to provide 'specific and legitimate' reasons for discounting the opinion." (Pl's Mot. at 15.)

         In the Commissioner's cross-motion for Summary Judgment (Doc. No. 18) and Motion for Reconsideration (Doc. No. 22), it is alleged that while the ALJ did not explicitly reject Dr. Vargas's opinion, "the ALJ credited the State agency doctors who explicitly reviewed Dr. Vargas's opinion and determined that it was not supported by the objective medical evidence of record." (Def.'s Mot. at 9.) Thus, the Commissioner contends the ALJ's decision should be upheld.

         The Court finds that the ALJ erred in ignoring Dr. Vargas's opinion.

         A. Failure to Mention Dr. Vargas's Opinion

         The ALJ's failure to mention Dr. Vargas's treatment records and opinion constitutes harmful error. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). If a treating or examining physician's opinion is contradicted by another doctor's opinion, as here, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence. Bayliss v. Barnhart, Ml F.3d 1211, 1216 (9th Cir. 2005). An ALJ meets this requirement by "'setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

         In this case, the medical records most relevant to determining Plaintiffs disability status come from Dr. Vargas since she was his primary care physician.[3] Dr. Vargas diagnosed several of Plaintiff s multiple health issues as well as provided follow-up care. She prescribed him multiple prescription medications and worked collaboratively with his psychiatrist, Dr. Emmit Lampkin. (Doc. No. 21 at 8-11.) She provided Plaintiff with "work excuse" letters and completed the necessary paperwork for his Family Medical Leave Act ("FMLA") leave. (AR at 348.) Moreover, Dr. Vargas's one-hundred ("100%") percent disabled finding due to PTSD is consistent with the VA and other examining physicians and providers findings as well. (Id. at 172-73.)

         Here, the ALJ failed to discuss Dr. Vargas's opinion or even mention that she treated the Plaintiff for over a year during the relevant time period. Report and Recommendation ("Report") at 17. In response, the Commissioner cited to the following perceived inconsistencies in the record to justify the ALJ's action: (1) treatment notes show normal findings during the same period that Dr. Vargas .. . opined that Plaintiff could not bend, stoop, or lift (AR at 460); (2) despite Plaintiffs claim of severe colitis and gastrointestinal issues, medical evidence reflected his condition was under control[4] (Id. at 457); (3) in August 2015, Plaintiff only took Advil for the allegedly disabling physical pain instead of prescription pain medication (Id. at 474); (4) Plaintiff engaged in 60 to 90 minutes of weightlifting and 25 minutes of cardio six times a week (Id. at 585); and (5) He traveled to Mexico to see his sons and participated in hiking activities despite his impairments. (Id. at 569.)

         Even assuming the aforementioned was correct, the ALJ failed to weigh, discuss, or evaluate the asserted inconsistencies with Dr. Vargas's opinion to provide "specific and legitimate reasons supported by substantial evidence in the record" to justify disregarding a treating physician's opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

         Thus, on this record, the ALJ's reason for disregarding Dr. Vargas's opinion and treatment notes is not clear, convincing, or supported by substantial evidence.

         B. Failure to Give Any Deference or Weight to Dr. Vargas's Opinions

         The ALJ gave no weight to the medical opinion of Dr. Vargas while giving great weight to non-treating consulting State agency medical examiners, Dr. Doig and Dr. Masters. The medical examiners "explicitly reviewed Dr. Vargas's opinion and determined that it was not ...


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