United States District Court, W.D. Washington, Seattle
April 15, 2014
MARLIN L. GEORGE, JR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL
MARY ALICE THEILER, Chief Magistrate Judge.
Plaintiff Marlin L. George, Jr. proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends this matter be REMANDED for further proceedings.
FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1981. He has a GED (AR 120), and past work as a fishing vessel deckhand and construction worker II. (AR 34.)
Plaintiff filed an application for SSI on August 9, 2010, alleging disability beginning August 12, 2010. Plaintiff's application was denied at the initial level and on reconsideration, and he timely requested a hearing.
On April 24, 2012, ALJ Glen G. Meyers held a hearing, taking testimony from plaintiff, his wife, and a vocational expert. (AR 41-90.) On May 10, 2012, the ALJ issued a decision finding plaintiff not disabled. (AR 23-36.)
Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on May 21, 2013 (AR 1-5), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's left femur fracture status post intramedullar rodding, adjustment disorder with anxious mood, and polysubstance abuse and alcohol abuse in remission severe. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform light work as defined in 20 C.F.R. § 416.967(b), except that he cannot stoop, crawl, balance, crouch, or kneel. Plaintiff can perform simple repetitive tasks, cannot have contact with the public, can have frequent contact with supervisors and co-workers, and would have less than one unscheduled absence per month. With that assessment, the ALJ found plaintiff unable to perform his past relevant work.
If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of a vocational expert, the ALJ found plaintiff capable of performing other jobs, such as small products assembler II and poultry dresser.
This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means 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). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues the ALJ failed to fully explain the weight given to the opinion of Dr. Raymond West and failed to give legally sufficient reasons for rejecting the opinion of treating psychiatrist Ann Bruce, M.D. He requests remand for further administrative proceedings. The Commissioner argues the ALJ's decision is supported by substantial evidence and should be affirmed.
Medical Opinion Evidence
The ALJ may reject physicians' opinions "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751. Rather than merely stating his conclusions, the ALJ "must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for "clear and convincing'" reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without "specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
A. Raymond West, M.D.
Dr. West evaluated plaintiff on October 26, 2010, conducting a records review, physical examination, and functional assessment. (AR 294-99.) The ALJ indicated he was giving "considerable weight to Dr. West's limitations for standing/walking, and sitting." (AR 33.) However, as plaintiff correctly points out, the ALJ's RFC finding did not include those limitations. The ALJ found plaintiff able to perform "light work as defined in 20 C.F.R. 416.967(b), " without incorporating any standing, walking or sitting limitations. (AR 27.) The ALJ did not reject those limitations - he simply failed to address them.
The Court notes with consternation that the Commissioner makes no meaningful response to plaintiff's fairly straightforward argument. Instead, the Commissioner does no more than reiterate, at length and in considerable detail, the ALJ's decision. (Dkt. 14 at 6-10.) The Commissioner does not address the issue actually before this Court - whether the ALJ failed to address significant probative evidence. Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (ALJ "may not reject significant probative evidence' without explanation.") (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). In this case, the ALJ erred in failing to fully address Dr. West's opinion.
B. Ann Bruce, M.D.
Plaintiff's second assignment of error relates to the ALJ's consideration of the opinion of treating psychiatrist Ann Bruce, M.D. Dr. Bruce provided mental health treatment to plaintiff over an extended period. (AR 356-62, 365, 367-70, 372-73, 375, 378-79, 382, 385, 388, 391-92, 394, 396, 398, 401, 403, 408, 410, 412.) She also referred plaintiff for neuro-psychological evaluation. (AR 312-18.) The ALJ gave "little to no weight" to Dr. Bruce's assessment that plaintiff was unable to sustain employment, finding that opinion to be inconsistent with the treatment notes showing "generally mild clinical findings, " grossly intact cognition, drug relapses, noncompliance with medication, and plaintiff's activities. (AR 33.)
Plaintiff disputes the ALJ's characterization of the clinical findings and cognitive problems described in the treatment notes, arguing the ALJ focuses almost exclusively on selected notes that supported the ALJ's conclusion, ignoring those notes and observations that did not. Plaintiff provides numerous examples in his opening and reply briefs to support this contention. (Dkt. 13 at 7-8; Dkt. 17 at 5-10.) Unfortunately, the Commissioner again fails to respond directly to plaintiff's arguments, other than again reciting the ALJ's findings and then concluding with the assertion the ALJ comprehensively analyzed the record and his assessments should be affirmed. (Dkt. 14 at 18-20.)
The Court agrees with plaintiff the decision fails to fully and fairly address the mental health evidence that contradicts the ALJ's findings. "Although it is within the power of the Secretary to make findings concerning the credibility of a witness and to weigh conflicting evidence, Rhodes v. Schweiker, 660 F.2d 722, 724 (9th Cir.1981), he cannot reach a conclusion first, and then attempt to justify it by ignoring competent evidence in the record that suggests an opposite result. Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982)." Gallant v. Heckler, 753 F.2d 1450, 1455-56 (9th Cir. 1984).
On remand, the ALJ should reevaluate the mental health evidence as a whole. If the ALJ finds Dr. Bruce's opinions ambiguous or inadequate, he should recontact the doctor for clarification or obtain a consultative examination. 20 C.F.R. § 416.912(e) (ALJ has an obligation to recontact a treating physician or psychologist when the evidence received is inadequate for a determination of disability). See also Widmark v. Barnhar t, 454 F.3d 1063, 1068 (9th Cir. 2006) ("[T]he ALJ should not be a mere umpire' during disability proceedings. Rather, the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'") (quoted sources omitted).
For the reasons set forth above, this matter should be REMANDED for further proceedings.