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McCord v. Colvin

United States District Court, D. Arizona

May 19, 2016

Inga K. McCord, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

          ORDER

          David C. Bury United States District Judge

         Pending before this Court is the Report and Recommendation (R&R) of Magistrate Judge Markovich, Plaintiff’s Objections and Defendant’s Response to Objections. After conducting a de novo review of the record, this Court will: adopt the Report and Recommendation, reverse the ruling of the Commissioner, and remand for an award of benefits.

         The Court will adopt in its entirety the Magistrate Judge’s thoroughly documented recitation of the procedural and factual history. (Doc. 20, 1- 34.)

         STANDARD OF REVIEW

         When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

         OBJECTIONS

         A. Defendant objects to the R&R’s re-weighing of conflicting evidence and the substitution of his judgment for that of the Commissioner

         Defendant objects to the R&R’s contravention of this limited scope of review and the substitution of his judgment for that of the Commissioner. The R&R reweighed the evidence by noting the medical opinions in this case “somewhat contradict” the opinion of a treating physician, Dr. Bupp, but the opinions are “not entirely inconsistent” with that opinion. (Doc. 20 at 39.) The R&R also found fault with the Administrative Law Judge’s (ALJ’s) apparent failure “to acknowledge Dr. Bupp’s OCD diagnosis, ” despite Plaintiff never having alleged her OCD was a severe impairment in the first place. (Doc. 29 at 40.) This “independent review” involves an improper substitution of judgment. Defendant objects to the R&R’s determination that the ALJ “summarily dismissed” Dr. Bupp’s opinion as “too restrictive and not supported by the objective evidence” because Plaintiff received “only modest treatment for depressed mood.” (Doc. 20 at 39.) The ALJ did not summarily dismiss Dr. Bupp’s opinion. Defendant objects to the R&R’s claim that the “ALJ failed to consider any of the factors outlined in 20 C.F.R. §404.1527(c).” (Doc. 20 at 42.) To the contrary, the ALJ specifically stated in the hearing decision that “I have also considered opinion evidence in accordance with the requirements of 20 C.F.R. §404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Tr. 22.) Defendant objects to the R&R’s determination that the ALJ’s adverse credibility finding was erroneous. Here, the ALJ’s interpretation of the evidence was reasonable and consistent with the regulations and circuit authority. Defendant objects to the R&R second-guessing of the ALJ’s rationale.

         Plaintiff responds that the Magistrate Judge was well-aware of the substantial-evidence standard of review, including elements of that standard the Commissioner alleges that he did not apply. (Doc. 20 at 35-36 (citing 42 U.S.C. § 405(g) and numerous Ninth Circuit cases explaining and applying the substantial-evidence standard of review).) Contrary to the Commissioner’s view that he did not understand § 405(g), the Magistrate Judge understood that on substantial-evidence review a “‘court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary’s conclusion.’” (Doc. 20 at 35 (quoting Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)).) Further, the Magistrate Judge’s reference to his “independent review” is a reference to his very responsibility to prepare a report and recommendation.

         In August 2009, treating psychiatrist Dr. Bupp opined that Plaintiff was much more limited than the ALJ found. (AR. 405-06.) The Magistrate Judge correctly recommended that the Court hold that the ALJ “erred in failing to provide legally sufficient reasons for rejecting Dr. Bupp’s opinion.” (Doc. 20 at 37.) The case at bar concerns a treating specialist’s opinion that the regulations expressly require giving “good reasons” for rejecting, see 20 C.F.R. § 404.1527(c)(2) (201), and that longstanding Circuit law requires clear-and-convincing (or specific-and-legitimate) reasons for rejecting, see Garrison v. Colvin, 759 F.3d 995, 1012-13 & nn.10-11 (9th Cir. 2014). The Magistrate Judge relied on Circuit treating-physician law and the regulations. (Doc. 20 at 37-39 (applying, e.g., Garrison, 759 F.3d at 1012).) The Magistrate Judge correctly recommended rejecting the Commissioner’s baseless waiver argument the ALJ failed to mention other physicians when rejecting Dr. Bupp’s opinions. (Doc. 20 at 39; Doc. 24 at 3-4.) The Magistrate Judge explained why the ALJ did not provide the required clear-and-convincing reasons to find Plaintiff not credible. (Doc. 20 at 42-49.)

         The R&R correctly reasons that if the ALJ believed that Dr. Bupp’s opinion was contradicted by the examining and consulting physician opinions, then the ALJ was required to give specific and legitimate reasons supported by substantial evidence for rejecting Dr. Bupp’s opinion. The ALJ failed to meet this burden when she summarily rejected Dr. Bupp’s opinion as “too restrictive and not supported by the objective evidence” and noted that “received only modest treatment for depressed mood.” (AR 21); see Garrison, 759 F.3d at 1012 (“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.”). Further, in noting that she accorded “less weight” to Dr. Bupp’s opinion because it was too restrictive, the ALJ failed to address the factors set out in 20 C.F.R. 404.1527(c). Finally, the ALJ erred in failing to consider Dr. Bupp’s OCD diagnosis.

         In sum, the ALJ’s conclusory dismissal of Dr. Bupp’s opinion as “too restrictive and not supported by the objective evidence” is wholly inadequate to meet the required standards of either clear and convincing reasons or specific and legitimate reasons supported by substantial evidence. (AR 21). In addition, the ALJ failed to consider any of the factors outlined in 20 C.F.R. 404.1527(c). The R&R properly found that the ALJ erred in rejecting Dr. Bupp’s opinion and the ALJ failed to provide “legally sufficient reasons for rejecting” Dr. Gray’s opinion.

         B. Defendant objects to the improper application of the credit-as-true rule to award benefits

         Defendant argues that multiple inconsistencies in the record preclude an immediate award of benefits. These different opinions underscore that the record is disputed in this case and remand is required to resolve these issues. Moreover, the R&R’s conclusion that the ALJ’s findings were inadequate or not sufficiently specific amounts to a concession that remand is the appropriate remedy. In light of the inconsistencies and conflicts in the record that require further administrative proceedings, this Court cannot proceed to the next ...


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