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Bellanca v. Colvin

United States District Court, W.D. Washington, Tacoma

May 6, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of defendant's denial of her application for disability insurance benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. After reviewing the parties' briefs and the remaining record, the Court hereby finds that for the reasons set forth below, defendant's decision to deny benefits should be reversed and this matter should be remanded for reevaluation of the opinions of consultative examiner Tasmyn Bowes, Psy.D., and plaintiff's mental health therapist Jeanne LeBlanc, LMHC.


On June 20, 2011, plaintiff protectively filed an application for Title II disability insurance benefits, alleging disability as of July 15, 2010, due to multiple physical and mental impairments including bipolar affective disorder and knee, foot and back pain. See Administrative Record ("AR") 193-94, 228-37. Plaintiff's application for benefits was denied upon initial administrative review and on reconsideration. See AR 132-38, 141-46. A hearing was held before an administrative law judge ("ALJ") on October 31, 2012, at which plaintiff, represented by counsel, appeared and testified, as did Steve Duchesne, a vocational expert. See AR 44-95.

On November 21, 2012, the ALJ issued a decision in which plaintiff was determined to be not disabled. See AR 18-43. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on April 26, 2013, making the ALJ's decision defendant's final decision. See AR 1-6; see also 20 C.F.R. § 404.981, § 416.1481.

On June 16, 2013, plaintiff filed a complaint in this Court seeking judicial review of the ALJ's decision. See Dkt. No. 3. The administrative record was filed with the Court on September 11, 2013. See Dkt. No. 10. The parties have completed their briefing, and thus this matter is now ripe for judicial review and a decision by the Court.

Plaintiff argues the ALJ's decision should be reversed and remanded to defendant for reconsideration of the entire record, because the ALJ erred: (1) in evaluating the medical opinion evidence in the record; (2) in discounting plaintiff's credibility; (3) in evaluating the opinion evidence of other medical sources in the record; and (4) in finding plaintiff to be capable of performing other jobs existing in significant numbers in the national economy. The undersigned agrees that the ALJ erred in determining plaintiff to be not disabled, but, for the reasons set forth below, finds that while defendant's decision should be reversed, this matter should be remanded for further administrative proceedings.


The determination of the Commissioner of Social Security (the "Commissioner") that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Commissioner of Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991) ("A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.") (citing Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987)).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 1193 ("[T]he Commissioner's findings are upheld if supported by inferences reasonably drawn from the record."). "The substantial evidence test requires that the reviewing court determine" whether the Commissioner's decision is "supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required." Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). "If the evidence admits of more than one rational interpretation, " the Commissioner's decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) ("Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made.") (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).[1]

I. The ALJ's Evaluation of the Medical Evidence in the Record

Plaintiff argues the ALJ erred by improperly rejecting the medical opinion of consultative psychologist Tasmyn Bowes, Psy.D. Dkt. No. 12, pp. 11-15; AR 33-34, 761-71. Dr. Bowes evaluated plaintiff at the request of the Social Security Administration approximately six months prior to the ALJ hearing. AR 761-71. The ALJ rejected Dr. Bowes' opinion that, in a work setting, plaintiff's performance anxiety would likely cause plaintiff to become overwhelmed, distracted and anxious by demands or expectations that she function efficiently and with sufficient speed. AR. 33-34, 770. Dr. Bowes further opined that plaintiff, with continued mental health treatment, could likely return to a low stress job within 6 to 24 months. AR. 33-34, 770. Dr. Bowes' opinion is significant because the ALJ did not include limitations in the residual functional capacity determination ("RFC") regarding plaintiff's ability to sustain competitive work in a setting where employees are expected to perform efficiently and with sufficient speed. AR 26. Although the RFC limited plaintiff to low stress work, the ALJ defined low stress work as "only occasional superficial interaction with the general public and co-workers." AR 26, 90. The ALJ's definition of low stress work did not include any limitations regarding employer demands or expectations of an employee's pace or perseverance. AR 26.

Substantial evidence does not support the ALJ's rejection of Dr. Bowes' opinion. The ALJ offered two reasons to reject the opinion of Dr. Bowes: (1) Dr. Bowes did not adequately consider whether plaintiff would be able to meet the demands and expectations of a job less demanding than nursing, and (2) Dr. Bowes was not a vocational expert and "did not have the opportunity to consider low stress work [plaintiff] could perform within [plaintiff's] residual functional capacity." Ar. 34. Neither of these reasons are a specific and legitimate reason supported by substantial evidence necessary to reject the testimony of an examining doctor. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a treating or examining physician's opinion is contradicted, that opinion "can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation ...

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