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Rogers v. Colvin

United States District Court, W.D. Washington

August 16, 2013

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, [1] Defendant

Noting Date: September 6, 2013

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For Kimberly A. Rogers, Plaintiff: David M Church, THE DISABLILITY LAW OFFICE, SILVERDALE, WA.

For Michael J. Astrue, Commissioner, Social Security Administration, Carolyn W Colvin, Acting Commissioner of the Social Security Administration, Defendants: Kerry Jane Keefe, U.S. ATTORNEY'S OFFICE (SEA), SEATTLE, WA; Willy M. Le, SOCIAL SECURITY ADMINISTRATION, SEATTLE, WA.


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J. Richard Creatura, United States Magistrate Judge.

This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). This matter has been fully briefed ( see ECF Nos. 15, 16, 17).

After considering and reviewing the record, the Court finds that the ALJ failed to provide specific and legitimate reasons for his failure to credit fully opinions from plaintiff's treating psychiatrist and examining doctor. The ALJ rejected their opinions with a finding that inconsistencies existed in their opinions, yet the ALJ failed to identify any legitimate inconsistencies. The ALJ also found that there was absolutely no evidence to support an opinion by the treating psychiatrist when in fact the ALJ had ignored multiple significant pieces of evidence supporting the opinions of the treating psychiatrist.

For these and other identified reasons herein, and based on the relevant record, this matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration.


Plaintiff, KIMBERLY A. ROGERS, was born in 1968 and was 41 years old on the alleged date of disability onset of November 4, 2009 ( see Tr. 53, 144-45). Plaintiff has a bachelor degree in computer science. Plaintiff has a long work history (Tr. 150-59) and was working as a senior security consultant for Verizon Business when she went on medical leave and subsequently was terminated when she was unable to return to work (Tr. 66, 78-79).

Plaintiff has at least the severe impairments of fibromyalgia, obesity, left shoulder supraspinatus teninopathy and bursitis, and post-traumatic stress disorder (" PTSD" ) ( see Tr. 38).

At the time of the hearing, plaintiff was living with her daughter, brother, brother's ex-wife and their children (Tr. 67).


Plaintiff filed an application for disability insurance (" DIB" ) benefits pursuant to 42 U.S.C. § 423 (Title II) on March 26, 2010 ( see Tr. 144-45). Her application was denied initially and following reconsideration (Tr. 81-82). Plaintiff's requested hearing was held before Administrative Law Judge Verrell Dethloff (" the ALJ" ) on October 18, 2011 (Tr. 63-80). On November 18, 2011, the ALJ issued a written decision in which he concluded that plaintiff was not disabled pursuant to the Social Security Act (Tr. 35-57).

On May 15, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-3). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision ( see ECF No. 1). Defendant filed the sealed administrative record regarding

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this matter (" Tr." ) on September 11, 2012 ( see ECF Nos. 10, 11).

In her Opening Brief, plaintiff raises the following issues: (1) whether or not the ALJ erred in improperly rejecting the opinions of the claimant's treating and examining medical providers; (2) whether or not the ALJ erred in improperly rejecting the lay witness testimony; (3) whether or not the ALJ erred in improperly rejecting the claimant's own testimony; and (4) whether or not the ALJ erred in failing to meet his step five burden and in relying exclusively on the grid rules despite the existence of significant non-exertional limitations ( see ECF No. 15, p. 1).


Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter " the Act" ); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). The Act defines disability as the " inability to engage in any substantial gainful activity" due to a physical or mental impairment " which can be expected to result in death or which has lasted, or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). Plaintiff is disabled under the Act only if plaintiff's impairments are of such severity that plaintiff is unable to do previous work, and cannot, considering plaintiff's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. § § 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). " Substantial evidence" is more than a scintilla, less than a preponderance, and is such " 'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should " 'review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (1996) (per curiam) ( quoting Andrews, supra, 53 F.3d at 1039). In addition, the Court must determine independently whether or not " 'the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

According to the Ninth Circuit, " [l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ -- not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1226-27

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(9th Cir. 2009) ( citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121, at *42 (9th Cir. 2012); Stout v. Commissioner of Soc. Sec., 454 F.3d 1050, 1054 (9th Cir. 2006) (" we cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision" ) (citations omitted). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d 1104, at *24-*26, *32-*36, *45-*46; see also 28 U.S.C. § 2111; Shinseki v. Sanders, 556 U.S. 396, 407, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009); Stout, supra, 454 F.3d at 1054-55.


Whether or not the ALJ erred in improperly rejecting the opinions of the claimant's treating and examining ...

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