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Bayliss v. Colvin

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

August 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 applications for disability insurance and 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 reversed and this matter should be remanded for further proceedings.


On June 25, 2009, plaintiff filed an application for SSI. See Administrative Record ("AR") 158-60. Plaintiff also filed an application for disability insurance benefits on July 7, 2009. AR 152-57. In these applications, plaintiff alleged disability as of January 2, 2001, due to post traumatic stress disorder, attention deficit disorder, social disorder, depressive disorder, and fetal alcohol syndrome. See AR 176. Plaintiff's applications were denied upon initial administrative review and on reconsideration. See AR 84-90, 92-102. A hearing was held before an administrative law judge ("ALJ") on January 11, 2011, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert ("VE"). See AR 41-79.

On February 1, 2011, the ALJ issued a decision in which plaintiff was determined to be not disabled. See AR 22-40. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on August 1, 2013, making the ALJ's decision defendant's final decision. See AR 1-7; see also 20 C.F.R. §§ 404.981, 416.1481. On October 2, 2013, plaintiff filed a complaint in this Court seeking judicial review of the ALJ's decision. Dkt. No.1. The administrative record was filed with the Court on February 21, 2014. Dkt. No. 12. 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 further proceedings because the ALJ erred: (1) in evaluating the medical evidence in the record; and (2) in rejecting the lay witness evidence in the record. 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.


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. Comm'r of Soc. Sec. 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. Sec'y of Health and Human Serv. , 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 in his assessment of the medical opinion of examining psychologist Norma L. Brown, PhD. Dkt. No. 16, pp. 12-15. Dr. Brown examined plaintiff on two separate occasions and opined, among other limitations, that plaintiff had at least marked limitations in the ability to relate appropriately to coworkers and supervisors, and severe limitations in the ability to respond appropriately to and tolerate the pressures and expectations of a normal work setting. See AR 273, 288. Dr. Brown defined "marked" as a "very significant interference with basic work related activities", and "severe" as an "inability to perform one or more basic work related activities". AR 271, 286. These limitations are significant as the basic demands of competitive unskilled work require the ability to respond appropriately to supervision, coworkers and usual work situations. See Social Security Ruling ("SSR") 85-15, 1985 WL 56857*4. A substantial loss in the ability to meet any of these basic activities would justify a finding of disabled under the Act. Id . The ALJ rejected Dr. Brown's opinions because they were inconsistent with Dr. Brown's objective findings on mental status examination ("MSE"). AR 31. This reason, however, is not a specific and legitimate reason supported by substantial evidence sufficient to reject the opinions of an examining psychologist. Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1996).

In resolving questions of credibility and conflicts in the evidence, an ALJ's findings "must be supported by specific, cogent reasons." Reddick v. Chater , 157 F.3d 715, 725 (9th Cir. 1998). The ALJ can do this "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id . The ALJ also may draw inferences "logically flowing from the evidence." Sample v. Schweiker , 694 F.2d 639, 642 (9th Cir. 1982). Further, the Court itself may draw "specific and legitimate inferences from the ALJ's opinion." Magallanes v. Bowen , 881 F.2d 747, 755, (9th Cir. 1989). The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an examining psychologist. Lester , 81 F.3d at 830. Even when an examining psychologist'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. Here, plaintiff concedes the specific and legitimate standard applies to the ALJ's assessment of Dr. Brown's opinion. See Dkt. No. 16, p 13.

The ALJ rejected Dr. Brown's opinion regarding plaintiff's social limitations because it was "contrary to the objective observations from the [MSE], in which plaintiff was alert, cooperative, had an appropriate appearance, and exhibited normal speech and appropriate eye contact." AR 31 (citing AR 290); see AR 288. The ALJ also noted that Dr. Brown observed plaintiff's thought processes and content were within normal limitations. AR 31, 290. Although discrepancies between a medical source's functional assessment and that source's clinical notes, recorded observations and other comments regarding a claimant's capabilities may provide a basis for rejecting a medical source's opinion, an ALJ may not substitute his own interpretation of medical findings for that of a qualified medical source. See Bayliss v. Barnhart , 427 F.3d 1211, 1216 (9th Cir. 2005)(discrepancies between a medical source's functional assessment and that source's clinical notes, recorded observations and other comments regarding a claimants capabilities "is a clear and convincing reason for not relying" and that assessment); Schmidt v. Sullivan , 914 F.2d 117, 118 (7th Cir. 1990) ("judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor. The medical expertise of the Social Security Administration is reflected in regulations; it is not the birthright of the lawyers who apply them. Common sense can mislead; lay intuitions about medical phenomena are often wrong") (internal citations omitted)); see also Gonzalez Perez v. Sec'y of Health and Human Serv. , 812 F.2d 747, 749 (1st Cir. 1987) (ALJ may not substitute own opinion for findings and opinion of physician); McBrayer v. Sec'y of Health and Human Serv. , 712 F.2d 795, 799 (2nd Cir. 1983) (ALJ cannot arbitrarily substitute own judgment for competent medical opinion); Gober v. Mathews , 574 F.2d 772, 777 (3rd Cir. 1978) (ALJ not free to set own expertise against that of physician who testified before him).

In conjunction with the examinations of plaintiff, Dr. Brown completed clinical interviews, MSE's, and psychometric testing, including the Trail Making Test ("TMT"), Beck Anxiety Inventory ("BAI"), and Beck Depression Inventory-III ("BDI-III"). See AR 271-98. Dr. Brown's opinions regarding plaintiff's limitations were based on the totality of this evaluation, not just the findings on MSE. See AR 273, 288 (indicating Dr. Brown's assessment of plaintiff's functional limitations was based on a combination of plaintiff's own reports, an interpretation of testing, and Dr. Brown's own clinical observations during the interview).

Moreover, the findings on MSE used by the ALJ to reject Dr. Brown's opinion related only to plaintiff's presentation. See AR 31 (citing AR 290 rejecting Dr. Brown's opinion because plaintiff was alert, cooperative, and had appropriate appearance, normal speech, and appropriate eye contact). However, the normal MSE findings highlighted by the ALJ do not provide a complete picture of plaintiff's presentation during the examinations conducted by Dr. Brown. See AR 287, 290 (very lethargic, abnormally still motor activity/motor retardation, flat affect, dysphoric/anxious mood), 273, 275 (very easily confused, very easily distracted, labile affect, very anxious mood, paranoid thought content, hears voices occasionally). Additionally, Dr. Brown indicated plaintiff demonstrated paranoid thought content. See AR 290 (characterizing plaintiff's thought content as both "WNL" and "other, " noting plaintiff reported experiencing auditory hallucinations, including hearing people outside her window, which Dr. Brown indicated was associated with paranoia).

The ALJ failed to identify any objective findings that contradicted Dr. Brown's opinion regarding plaintiff's ability to respond appropriately to and tolerate the pressures and expectations of a normal work setting. Dr. Brown's findings on examination were consistent with this conclusion. For example, Dr. Brown observed that plaintiff had "no skills to deal [with] anxiety." AR 288. Plaintiff's score on the Beck Anxiety Inventory ("BA") indicated severe anxiety. AR 286. Consistent with these findings, plaintiff's memory testing scores were "low due to anxiety [and] trouble focusing." AR 290, 292. Dr. Brown observed that plaintiff's anxiety also interfered with plaintiff's ability to perform activities; for example, Dr. Brown noted that plaintiff had trouble with getting on the wrong bus. See AR 287; accord AR 291.

For these reasons, the ALJ's reason for rejecting Dr. Brown's evaluation was not a specific and legitimate reason supported by substantial evidence sufficient to reject the opinion of an examining psychologist. See Lester , 81 F.3d at 830-31. As such, this Court recommends the ALJ decision be reversed and remanded for further consideration of Dr. Brown's medical opinion.

II. The ALJ's Evaluation of the Lay Witness Evidence in the Record

Plaintiff also argues the ALJ erred in his assessment of the lay witness testimony of plaintiff's long time boyfriend, and of plaintiff's father. Dkt. No. 16, pp 15-20. The Court already has concluded that the ALJ erred in reviewing the medical evidence, and that this matter should be reversed and remanded for further consideration. For this reason, it is not necessary for the Court to reach a determination on this issue. However, an assessment of lay witness testimony relies in part on an assessment of the medical evidence. See 20 C.F.R. §§ 404.1513(d)(4). 416.913(d)(4); SSR 06-03p, 2006 WL 2329939*3-*5. As such, the statements of plaintiff's father and boyfriend also should be reassessed on remand.


Based on the foregoing discussion, the undersigned recommends the Court find the ALJ improperly concluded plaintiff was not disabled. Accordingly, the undersigned recommends as well that the Court REVERSE the ALJ's decision and REMAND this matter to defendant for further administrative proceedings in accordance with the findings contained herein, and pursuant to sentence four of 42 U.S.C. § 405(g).

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 72(b), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn , 474 U.S. 140 (1985). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed set this matter for consideration on August 29, 2014, as noted in the caption.

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