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Fanlo v. Berryhill

United States District Court, S.D. California

March 28, 2018

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



         Plaintiff John Paul Fanlo brought this action for judicial review of the Social Security Commissioner's (“Commissioner”) denial of his claim for disability insurance benefits. ECF No. 1. Before the Court are Plaintiff's Motion for Summary Judgment [ECF No. 15-1 (“Pl.'s Mot.”)], Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment [ECF Nos. 16-1 and 19-1[1] (“Def.'s Mot.”)], and Plaintiff's Reply to Defendant's Opposition [ECF No. 20 (“Pl.'s Reply”)]. Defendant did not file a Reply.

         This Report and Recommendation is submitted to United States District Judge Larry A. Burns pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Plaintiff's Motion for Summary Judgment be GRANTED, Defendant's Cross-Motion for Summary Judgment be DENIED, and the case be remanded for further proceedings.


         On November 24, 2015, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning on May 1, 2015. See Administrative Record (“AR”) at 161-162. The claim was denied initially on February 18, 2016, and upon reconsideration on May 24, 2016, resulting in Plaintiff's request for an administrative hearing. Id. at 82, 97-98.

         On November 16, 2016, a hearing was held before Administrative Law Judge (“ALJ”) Robin L. Henrie. Id. at 30-70. Plaintiff was represented at the hearing by an attorney, Ms. Linh Nguyen. Id. at 30; see also id. at 153-154. Plaintiff's main attorney of record was Don Jorgensen. Id. at 153-154. Plaintiff and an impartial vocational expert testified at the hearing. See id. at 30-70. In a written decision dated February 14, 2017, ALJ Henrie determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from May 1, 2015 through the date of the ALJ's decision. Id. at 15, 30. On April 14, 2017, Plaintiff requested review by the Appeals Council. Id. at 158. The Appeals Council denied review of the ALJ's ruling, and the ALJ's decision therefore became the final decision of the Commissioner. Id. at 1-3.

         On August 10, 2017, Plaintiff filed the instant action seeking judicial review by the federal district court. See ECF No. 1. On January 2, 2018, Plaintiff filed a timely motion for summary judgment alleging the ALJ committed legal error by failing to properly consider the opinion of Plaintiff's treating physician, Dr. George Flood. See Pl.'s Mot. Plaintiff asks the Court to overturn the final decision of the Commissioner and award Plaintiff his disability insurance benefits without remand, or alternatively, to remand the case to the Social Security Administration (“SSA”). Id. at 6-7. On January 30, 2018, Defendant filed an opposition to Plaintiff's motion for summary judgment and a cross-motion for summary judgment asserting that the ALJ properly considered Dr. Flood's opinion and treatment history. See Def's. Mot. On February 16, 2018, Plaintiff timely filed a reply to Defendant's opposition and cross-motion for summary judgment. Pl.'s Reply.


         On February 14, 2017, the ALJ issued a written decision in which she determined that Plaintiff was not disabled as defined in the Social Security Act. AR at 17-30. Initially, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 1, 2015, the alleged onset date. Id. at 17. She then considered all of Plaintiff's medical impairments and determined that the following impairments were “severe” as defined in the Regulations: “disorders of the back/spine (degenerative and discogenic), anxiety disorder, and post-traumatic stress disorder (20 CFR 404.1520(c)).” Id. At step three, the ALJ found that Plaintiff's medically determinable impairments or combination of impairments did not meet or medically equal the listed impairments. Id. at 18. In reaching this decision, the ALJ noted that “no acceptable medical source in the record opined that the claimant's physical impairment meets or equals the criteria of a listing, including the State agency medical consultants.” Id.

         To determine at step four whether Plaintiff could return to his past work, the ALJ performed a residual functional capacity (“RFC”) analysis. See id. at 18-28. The ALJ considered Plaintiff's severe impairments and determined that his RFC permitted “light work activity” including the ability to perform sedentary work. Id. at 28. The ALJ found that Plaintiff has the RFC to perform the full range of light and sedentary unskilled work with the following limitations:

Lifting more than 20 pounds at a time, on more than an occasional basis; lifting and then carrying articles weighing more than 10 pounds, on more than a frequent basis; standing or walking more than 15-20 minutes at one time, and no more than 6 hours in an 8-hour work day with a cane option to walk; sitting more than 15-20 minutes at one time, and no more than 6 hours in an 8-hour workday; more than occasional stooping, bending, twisting, or squatting; working on the floor (e.g., no kneeling, crawling or couching); ascending or descending full flight of stairs; overhead lifting or overhead reaching; more than frequent reaching, handling, and fingering; working in other than a low stress environment, which means: No. working with the general public and no working with crowds of co-workers, or ‘rare' verbal contact with supervisors and co-workers; work that is more than unskilled and low concentration, which means the claimant has the ability to be alert and attentive to only routine unskilled work tasks; work that is more than unskilled and low memory, which means: the ability to understand, remember and carry out only ‘simple' work instructions; and food control work duties.

AR 20.

         In reaching this decision, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” Id. The ALJ notes that she “also considered opinion evidence in accordance with the requirements” of the regulations. Id. The ALJ noted that Plaintiff alleged disability due to his low back pain, neck pain, left leg numbness, right shoulder pain, left knee pains, episodic coughing, and PTSD. Id. at 24. However, the ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Id. at 22. Having completed the RFC findings, the ALJ determined that Plaintiff could not return to his past work as a Transportation Security Officer. Id. at 28. However, the ALJ determined that Plaintiff was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy, ” including the representative occupations of an addresser, mail clerk or a document preparer. Id. at 29. The ALJ therefore found that Plaintiff was not disabled. Id. at 29-30.


         Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Id.; see also Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.” Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.” Id. (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “In determining whether the [ALJ's] findings are supported by substantial evidence, [the court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ's] conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted). Where the evidence can reasonably be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. See Batson, 359 F.3d at 1193. This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.

         Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson, 359 F.3d at 1193. Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administration for further proceedings. Id.


         Plaintiff argues that the ALJ committed legal error because she did not properly consider the opinion of Plaintiff's treating physician, Dr. George Flood. Pl.'s Mot. at 4-5. Plaintiff states that the ALJ rejected Dr. Flood's opinion “due to a lack of supporting progress notes from the Department of Veterans Affairs (VA).” Id. at 5 (citing AR 26). Plaintiff explains that “the ALJ questions the severity of [Plaintiff's] mental impairment based on his lack of interest in psychotherapy, ” but that Plaintiff eventually sought psychotherapy treatment in June 2015, which is near the period of Plaintiff's onset date. Id. (citing AR 24, 388). Plaintiff also explains that the ALJ rejected Dr. Flood's opinion “because the medical records appear to show evidence of improvement.” Id. at 6 (citing AR 26). However, Plaintiff argues that “[c]ycles of improvement are common occurrences when considering mental health issues” and “must be taken in context and do not always mean that a claimant is capable of working effectively in a workplace.” Id. (internal citations omitted). Plaintiff further explains that the references of improvement were made during a period that Plaintiff was not working or in school. Id. at 7 (internal citation omitted). Finally, Plaintiff argues that the ALJ gave significant weight to a state agency physician who never examined Plaintiff in person, and “[t]he ALJ erred by giving greater weight to the non-examining physician.” Id. at 7-8.

         Defendant argues that the ALJ properly considered the medical evidence, including the opinion of treating physician Dr. Flood. Def.'s Mot. at 4-5. In support, Defendant claims that the “ALJ was tasked with resolving starkly conflicting medical opinions regarding Plaintiff's mental functioning.” Id. at 5 (citing AR 19, 26-28, 78-80, 94-95, 470-75). Defendant argues that on one end, “Dr. Flood stated Plaintiff was ‘unable to meet professional standards' in various areas of cognitive and social functioning, including but not limited to, understanding short and simple instructions and working around others.” Id. at 5 (citing AR 26, 472). Defendant argues that on the other end, “state agency physicians G. Rivera-Miya, M.D., and Yanira Olaya, M.D., each found Plaintiff was not significantly limited in many areas of cognitive and social functioning including, but not limited to, performing simple tasks and getting along with coworkers.” Id. (citing AR 19, 27-28, 78-80, 94-95). Defendant contends that the ALJ set forth “specific and legitimate reasons supported by substantial evidence explaining how he weighed the evidence.” Id. Specifically, defendant argues that the ALJ explained that “Plaintiff's activities of daily living, observed behavior, mental-status examinations, and treatment history best comported with Drs. Rivera-Miya and Olaya's opinions.” Id. at 5-8.

         In his reply, Plaintiff argues that “as a treating physician, Dr. Flood has been in the position to monitor and assess Fanlo's capabilities.” Pl.'s Reply at 4. Plaintiff argues that “[t]he ALJ's rejection of Dr. Flood's opinion that Fanlo is unable to meet competitive standards in the workplace on a sustained basis lacks the support of substantial evidence.” Id.

         A. Relevant Law

         The opinion of a treating doctor generally should be given more weight than opinions of doctors who do not treat the claimant. See Turner v. Comm'r. of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). If the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons supported by substantial evidence in the record. Id. (citing Lester, 81 F.3d at 830-31). Even when the treating doctor's opinion is contradicted by the opinion of another doctor, the ALJ may properly reject the treating doctor's opinion only by providing "specific and legitimate reasons" supported by substantial evidence in the record for doing so. Id. (citing Lester, 81 F.3d at 830-31). This can be done by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof, and making findings." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). "The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). “The opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician; such an opinion may serve as substantial evidence only when it is consistent with and supported by other independent evidence in the record.” Townsend v. Colvin, 2013 WL 4501476, *6 (C.D. Cal. Aug. 22, 2013) (quoting Lester, 81 F.3d at 830-31) (citing Morgan, 169 F.3d at 600).

         If a treating doctor's opinion is not afforded controlling weight, “the ALJ must consider the ‘length of the treatment relationship and the frequency of examination' as well as the ‘nature and extent of the treatment relationship' . . . . In addition, the ALJ must still consider the other relevant factors such as ‘the amount of relevant evidence that supports the opinion and the quality of the explanation provided' and ‘the consistency of the medical opinion with the record as a whole.'” West v. Colvin, 2015 WL 4935491, at *8 (D. Or. Aug. 18, 2015) (quoting Orn, 495 F.3d at 631; 20 C.F.R. §§ 416.927(c); and 404.1527(c)).

         B. Plaintiff's Relevant Medical History and VA Records[2]

         On March 24, 2014, Plaintiff received a determination of 100% disability from the Veterans Administration (“VA”) effective October 1, 2013 for depression related to his PTSD. AR 492. The decision stated:

         The evaluation of chronic posttraumatic stress disorder (PTSD) is increased to 100 percent disabling effective October 1, 2013. An evaluation of 100 percent is assigned from October 1, 2013, the day that we received your claim for depression (related to PTSD - combat). We have assigned a 100 percent evaluation for your PTSD based on:

• Total occupational and social impairment
• Gross impairment in communication
• Gross impairment in thought ...

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