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Kovach v. Berryhill

United States District Court, S.D. California

July 9, 2019

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


          Honorable Michael S. Berg United States Magistrate Judge

         This Report and Recommendation is submitted to the Honorable Gonzalo P. Curiel, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. On August 7, 2018, William Joseph Kovach (“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security denying his application for a period of disability, disability insurance benefits, and supplemental security income. (ECF No. 1.)

         Now pending before the Court are the parties' cross-motions for summary judgment. After a thorough review of the parties' submissions, along with the entire record submitted in this matter, and for the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion for summary judgment be GRANTED, that the Commissioner's cross-motion for summary judgment be DENIED, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).


         On September 5, 2014, Plaintiff filed an application for a period of disability, disability insurance benefits, and supplemental security income under Title II and Title XVI of the Social Security Act, alleging disability beginning January 1, 2011 (Certified Admin. R. 290-98, 308-14, ECF No. 11 (“AR”)). The Commissioner denied the claims by initial determination, (AR 173-88), and upon reconsideration, (AR 191-210). Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”). (AR 227-28.) The administrative hearing was held on July 26, 2017. (See AR 59-85.) On August 24, 2017, ALJ Salena D. Bowman-Davis issued a decision finding Plaintiff was not disabled, as defined in the Social Security Act. (AR 43-54.) On July 3, 2018, Plaintiff's request for review was denied by the Appeals Council, (AR 1-6), resulting in the ALJ decision becoming the final decision of the Commissioner, (42 U.S.C. § 405(h)), but subject to judicial review, (42 U.S.C. § 405(g)).


         The ALJ determined that Plaintiff met the status requirements for disability benefits through June 30, 2021. (AR 45.) Thereafter, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 1, 2011, the alleged onset date. (AR 45.) The ALJ found that although the Plaintiff worked after the alleged onset date, his earnings did not meet the minimum threshold for substantial gainful activity. (AR 45-46.)

         At step two, the ALJ found that Plaintiff had the following severe impairments: disorder of the back, degenerative joint disease, and obesity. (AR 46.) Additionally, the ALJ classified Plaintiff's following conditions as nonsevere, and not negatively impacting Plaintiff's ability to work: sleep apnea, chronic heart failure, and mental impairments. (AR 46-47.)

         At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the 20 CFR Part 404, Subpart P, Appendix I. (AR 47.)

         Before step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”), 20 C.F.R. § 416.920(e), and determined that Plaintiff had the RFC to perform the following activities but with certain limitations:

perform less that the full range of light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b). The claimant can lift, carry, push, or pull 25 pounds frequently and 50 pounds occasionally. The claimant can stand and or walk for six hours with normal breaks. The claimant can sit for six hours with normal breaks. The claimant can push and pull no more than frequently with the upper extremities. The claimant can no more than frequently use hand controls. The claimant cannot perform any repetitive pushing and pulling. The claimant can perform no more than frequently handling and fingering bilaterally, with no continuous handling or fingering. The claimant can occasionally climb stairs, ramps, ladders, and scaffolds. The claimant can occasionally crouch, crawl and stoop. The claimant must avoid unprotected heights and workplace hazards. The claimant can tolerate no more than occasional exposure to extreme temperatures. The claimant is best suited for an occupation with no high production quotas and not in a fast-paced work environment. The claimant requires the freedom to alternate sitting with standing or walking while performing the occupation.

(AR 48.)

         At step four, the ALJ first found that Plaintiff's RFC allowed him to perform his past relevant work as a security guard. (AR 54.) Accordingly, the ALJ found that Plaintiff was not disabled from January 1, 2011, through the date of the decision and concluded her analysis. (AR 54); see also 20 C.F.R. § 404.1520(f).


         The disputed issue in this case is whether the ALJ properly evaluated the opinion of Plaintiff's treating physician, Paul Simon, M.D (“Dr. Simon”). (See ECF Nos. 14-1 at 4; 15-1 at 6.)


         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. See Batson v. Comm. of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (reversing for lack of substantial evidence). “Substantial evidence means “more than a mere scintilla” but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

         V. DISCUSSION

         A treating physician's opinion is entitled to special weight because a treating physician “is employed to cure and has a greater opportunity to know and observe the patient as an individual.” McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The medical opinion of a claimant's treating physician is given “controlling weight” so long as it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the plaintiff's] case record.” 20 C.F.R. § 404.1527(c)(2). “The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

         If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991)). Where the treating physician's opinion, as in this case, [1] is controverted by another physician, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence in the record. See Magallanes, 881 F.2d at 751; Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If there is substantial evidence in the record contradicting the opinion of the treating physician, the opinion is no longer given “controlling weight” and the ALJ must consider the factors listed in § 404.1527(d)(2)-(6) in determining what weight to give the opinion of the treating physician. See Orn, 495 F.3d at 632.

         A. Dr. Simon's Opinion

         Dr. Simon was Plaintiff's primary care provider at the Veterans Administration (“VA”) San Diego Healthcare System and began treating Plaintiff on March 24, 2011. (AR 426, 822.) On May 16, 2017, Dr. Simon completed a check-the-box “Physical Residual Functional Capacity Questionnaire” (“Questionnaire”). (AR 42-45.) In it, Dr. Simon reported that Plaintiff had been diagnosed with congestive heart failure with preserved ejection fraction[2] and degenerative joint disease of the lower extremities. (AR 822.) Dr. Simon identified 2D echo and x-rays of Plaintiff's knees and ankles[3] as objective evidence of Plaintiff's diastolic dysfunction and degenerative joint disease, respectively. (AR 822.) Dr. Simon opined that Plaintiff was not a malingerer, his prognosis was “poor” and noted symptoms of decreased exercise tolerance, dyspnea[4] on exertion, and pain in Plaintiff's knees and lower back. (AR 822.) Dr. Simon reported in the Questionnaire that Plaintiff experienced the listed symptoms and limitations since January 1, 2012. (AR 825.) Dr. Simon further noted that Plaintiff suffered from fatigue caused by medication, depression, and anxiety. (AR 822-23.) Dr. Simon further opined that in a competitive work situation, Plaintiff was limited as follows: sit for only 30 minutes at one time; stand for only 45 minutes at one time; occasionally lift up to twenty pounds and rarely lift fifty pounds; rarely turn his head in any direction or hold his head in a static position; rarely twist, stoop, crouch/squat, or climb stairs; never climb a ladder; and that he needed a job that would permit him to shift at-will between sitting, standing, or walking, take unscheduled breaks, and elevate his legs after prolonged sitting. (AR 823-24.)

         Notably, Dr. Simon opined that Plaintiff could do only the following in an 8-hour working day: (1) sit for less than a total of two hours, (2) stand/walk less than a total of two hours, and (3) for only 20% of the working day, reach with his arms, perform fine manipulations with his fingers, and grasp, turn, and twist objects with his hands. (AR 823-24.) Dr. Simon claimed Plaintiff constantly “experience[ed] pain or other symptoms severe enough to interfere with attention and concentration needed to perform simple work tasks.” (AR 823.)

         Though not discussed in the Questionnaire, Dr. Simon's six-year history treating Mr. Kovach ostensibly supported his opinions. Based on the VA medical treatment records included in the Administrative Record, [5] Dr. Simon interacted with Plaintiff at least 22 times between July 19, 2013 and May 16, 2017, and treated Plaintiff for numerous different conditions.[6] (See AR 425-511, 443-93, 634-821.) Sixteen of those interactions were office visits, and the remaining consultations were performed over the phone. The VA medical records also included Plaintiff's treatment records from other providers within the VA. There are detailed progress notes for twelve of Plaintiff's office visits with Dr. Simon, from June 17, 2014 to May 16, 2017. At each of those visits, Dr. Simon noted that Plaintiff was “general[ly] alert, oriented to person place and time, not in cardiopulmonary distress, ” and his “neurologic CNs [were] intact, motor [strength] was 5/5, sensory 100%, [and] reflexes 2/4 in all extremities.” (See AR 607 (June 17, 2014); see also AR 596 (July 21, 2014), 576 (November 7, 2014), 568 (February 11, 2015), 782 (May 4, 2015) 717-18 (August 14, 2015), 705 (January 20, 2016), 691 (September 8, 2016), 683 (September 23, 2016), 653 (March 2, 2017), 644 (March 8, 2017), 637 (May 16, 2017).)

         1. Heart ...

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