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Danielle v. Colvin

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

May 7, 2014

KALLISTA DANIELLE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant.

REPORT AND RECOMMENDATION

KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of defendant's denial of her application for supplemental security income ("SSI") benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review, recommending that for the reasons set forth below, defendant's decision to deny benefits should be remanded for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On April 19, 2010, plaintiff filed an application for SSI benefits, alleging disability as of January 1, 2001, due to Post Traumatic Stress Disorder ("PTSD"), Anxiety Disorder with Panic Attacks, and Irritable Bowel Syndrome ("IBS"). See Administrative Record ("AR") 137-40, 167. Her application was denied upon initial administrative review and on reconsideration. See AR 80-87, 91-92. A hearing was held before an administrative law judge ("ALJ") on January 11, 2012, at which plaintiff, represented by counsel, appeared and testified, as did vocational expert ("VE") DT North. See AR 32-76.

On January 20, 2012, the ALJ issued a decision in which plaintiff was determined to be not disabled. See AR 14-31. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on February 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 April 16, 2013, plaintiff filed a complaint in this Court seeking judicial review of the ALJ's decision. See Dkt. #1-3. The administrative record was filed with the Court on July 5, 2013. See Dkt. #11. 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 payment of benefits, or in the alternative, reversed and remanded for further proceedings because the ALJ erred: (1) in evaluating the medical opinion of Dr. Krueger; (2) in rejecting the lay witness evidence from Rodney Morken; (3) in discounting plaintiff's credibility; and (4) in finding her to be capable of performing other jobs existing in significant numbers in the national economy. The undersigned agrees the ALJ erred in determining plaintiff to be not disabled, but, for the reasons set forth below, recommends that while defendant's decision should be reversed, this matter should be remanded for further administrative proceedings.

DISCUSSION

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)).[2]

I. The ALJ's evaluation of the Opinion from Examining Provider Keith Krueger, PhD.

Dr. Keith Krueger evaluated plaintiff on behalf of the state Department of Social and Health Services on October 28, 2009. AR 215-22. He diagnosed plaintiff with Post Traumatic Stress Disorder and Major Depression and found plaintiff markedly limited in her ability to interact appropriately in public contacts and in her ability to respond appropriately to and tolerate the pressures and expectations of a normal work setting. AR 217-18. In evaluating this opinion, the ALJ stated "[t]he residual functional capacity recognizes the claimant's limitation in this area and limits her to work that requires only superficial public interaction and no more than rudimentary judgment." AR 24. Plaintiff argues that, despite according weight to this opinion, the ALJ failed to properly include all of Dr. Krueger's opined limitations in his Residual Functional Capacity ("RFC") finding. See Dkt. #14, p. 2-4. This Court agrees.

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. In this case, while the ALJ seems to imply that he adopted the opinion of Dr. Krueger in its entirety, he did not incorporate Dr. Krueger's limitation regarding plaintiff's ability to tolerate pressures and expectations in the work place into his RFC finding. See AR 24, 25, 218. The ALJ was required to provide at least specific and legitimate reasons for discounting this part of the opinion, and committed reversible error in failing to do so.

Defendant argues that the ALJ properly accounted for this limitation in the RFC by limiting the plaintiff to jobs that do not "require exercise of more than rudimentary judgment." Dkt. #22, p. 9; Ar. 21. While an ALJ's RFC finding need not be identical to credible medical opinions, it does need to be consistent with them. See Chapo v. Astrue, 682 F.3d 1285, 1288 (10th cir. 2012) ("[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question."); Turner v. Comm'r of Social Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (accepting limitations that were "entirely consistent" with physician's evaluation). Here, the ALJ's RFC finding was not consistent with the limitations opined by Dr. Kruger. While exercising judgment may have some relationship to tolerating pressures and expectations of a normal work setting, they are not the same limitation. The form completed by Dr. Krueger specifically asked for his opinion about both the plaintiff's "ability to exercise judgment and make decisions" as well as her "ability to respond appropriately to and tolerate the pressures and expectations of a normal work setting." AR 218. Further, Dr. Krueger opined that plaintiff would be only moderately limited in the former while he opined plaintiff to be markedly limited in the later. Id. If exercising judgment and tolerating work place pressures and expectations were the same limitation, there would be no need for separate questions and Dr. Krueger wouldn't have opined different levels of severity for each limitation.

The vocational expert ("VE") testimony further supports plaintiff's argument that the ALJ's RFC does not properly account for Dr. Krueger's opined limitation regarding tolerating the pressures and expectations of normal work. When the ALJ posed a hypothetical to the VE limiting a person to work with no more than rudimentary judgment, the VE was able to find jobs in the national economy that person would be able to perform. See Ar. 69-71. However, when plaintiff's attorney asked the VE how having a "marked impairment in the ability to tolerate the pressures and expectations of a normal work setting" would affect a person's ability to sustain competitive employment, the VE testified that that specific limitation would ...


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