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Blakesley v. Colvin

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

August 29, 2014

DEVIN PAUL BLAKESLEY, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Devin Paul Blakesley seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred by finding his mental impairments did not meet or equal a listing and by failing to consider the effects of all of his impairments when evaluating his residual functional capacity. Dkt. 14. As discussed below, the Court recommends the case be REVERSED and REMANDED for an award of benefits for the closed period from April 9, 2010, to February 1, 2012.

BACKGROUND

Mr. Blakesley is currently 39 years old, has a high school education, and has worked as a security guard and print shop helper. Tr. 65-66, 231, 275. On February 22, 2011, he applied for benefits, alleging disability as of April 9, 2010. Tr. 231, 233. After his applications were denied initially and on reconsideration, the ALJ conducted a hearing and, on August 30, 2012, issued a decision finding Mr. Blakesley not disabled. Tr. 19-32. As the Appeals Council denied Mr. Blakesley's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1.

THE ALJ'S DECISION

Utilizing the five-step disability evaluation process, [1] the ALJ found that Mr. Blakesley had engaged in substantial gainful activity from February 1, 2012, to the date of the decision, but had not engaged in substantial gainful activity from the alleged onset date to February 1, 2012. Tr. 21-22. The ALJ's remaining findings addressed the period Mr. Blakesley did not engage in substantial gainful activity. Tr. 22. The ALJ found that Mr. Blakesley had the following severe impairments: degenerative disc disease of the lumbar spine, attention deficit disorder, affective disorder, anxiety-related disorder, and personality disorder; and that these impairments did not meet or equal a listed impairment.[2] Tr. 22-25. The ALJ found that Mr. Blakesley had the residual functional capacity to perform light work except he should avoid concentrated exposure to extreme cold and to hazards; he had the mental capability to adequately perform the mental activities generally required by competitive, remunerative work as follows: he could understand, remember, and carry out simple instructions required of jobs classified at a level of SVP 1 and 2 or unskilled work; he could make simple judgments and work-related decisions required of unskilled jobs, respond appropriately to supervision and co-workers, and deal with changes all within a stable work environment; he could not deal with the general public as in a sales/cashier position or where the general public is frequently encountered as an essential element of the work process such as telemarketing; incidental contact with the general public is not precluded so long as the public is not a part of the work process. Tr. 26. The ALJ found that Mr. Blakesley was unable to perform any past relevant work, but he could perform other work that exists in significant numbers in the national economy. Tr. 30-31. The ALJ therefore concluded that Mr. Blakesley was not disabled. Tr. 32.

DISCUSSION

A. The ALJ's evaluation of the medical opinions

Mr. Blakesley argues that the ALJ erred by rejecting medical opinions from treating and examining sources to find at step three that Mr. Blakesley's mental impairments did not meet or equal a listing for the closed period at issue here. Dkt. 14 at 3. He further argues, in the alternative, that because the ALJ erroneously rejected the treating and examining doctors' opinions, the ALJ erred in evaluating his residual functional capacity and in finding him not disabled at step five. Dkt. 14 at 18-19.

The ALJ must follow a special technique for evaluating mental impairments. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The ALJ must first evaluate a claimant's pertinent signs, symptoms, and laboratory findings to determine whether the claimant has a medically determinable mental impairment. 20 C.F.R. §§ 404.1520a(b), 416.920a(b). If the ALJ finds that the claimant has a medically determinable mental impairment, the ALJ must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment. Id. The ALJ must then rate the degree of functional limitation resulting from the impairment in four broad areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c), 416.920a(c). If the degree of functional limitation in the first three areas is "none" or "mild" and it is "none" in the fourth area, the impairment is generally not severe. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). Otherwise, the impairment is severe, and the ALJ must consider whether it meets or equals a listed impairment at step three. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). An impairment or combination of impairments meets or equals the listings at issue here if the claimant has marked restriction in at least two of the first three functional areas or marked restriction in at least one of the first three functional areas along with repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, App. 1, §§ 12.02, 12.04, 12.06, 12.08. If the impairment neither meets nor equals the severity of a listing, the ALJ must then assess the claimant's residual functional capacity. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).

The ALJ relied on the opinions of Kevin Zvilna, Ph.D., Bridget Cantrell, Ph.D., and Daniel Kodner, M.D., to find at step two that Mr. Blakesley had medically determinable severe mental impairments. Tr. 23-24. The ALJ relied primarily on Mr. Blakesley's self reports, with a brief reference to Dr. Kodner's evaluation and a medical center treatment report, in evaluating Mr. Blakesley's functional limitations in the four areas at step three. Tr. 25-26. The ALJ found that Mr. Blakesley had mild restriction in activities of daily living; moderate difficulties in social functioning; moderate difficulties in concentration, persistence, or pace; and no episodes of decompensation that have been of extended duration. Tr. 25-26. The ALJ therefore concluded at step three that Mr. Blakesley did not have a mental impairment that met or equaled the listings for the relevant period. Id. The ALJ then proceeded to assess Mr. Blakesley's residual functional capacity. Tr. 26. The ALJ gave little weight to Dr. Zvilna's, Dr. Cantrell's, and Dr. Kodner's opinions in making this assessment, instead giving significant weight to the state agency psychological consultant's opinion. Tr. 28-30.

Mr. Blakesley argues that the ALJ erred by rejecting the opinions of Dr. Zvilna, Dr. Cantrell, and Dr. Kodner, who opined that his impairments were severe enough to meet or equal a listing, in favor of the opinion of the non-examining doctor. Dkt. 14 at 6. In general, the ALJ should give more weight to the opinion of a treating doctor than to that of a non-treating doctor, and more weight to the opinion of an examining doctor than to that of a non-examining doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where it is not contradicted by another doctor, the ALJ may reject a treating or examining doctor's opinion only for "clear and convincing reasons." Id. at 830-31. Where contradicted, the ALJ may not reject a treating or examining doctor's opinion without "specific and legitimate reasons" that are supported by substantial evidence in the record. Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). An ALJ does this by setting out a detailed and thorough summary of the facts and conflicting evidence, stating hhiser interpretation of the facts and evidence, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must do more than offer his conclusions; he must also explain why his interpretation, rather than the treating doctor's interpretation, is correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

1. Dr. Zvilna

Dr. Zvilna examined Mr. Blakesley in January 2011. He diagnosed major depressive disorder, PTSD, and psychotic disorder NOS, with rule out diagnoses of schizophrenia and ADHD. He also noted "head twitching" and disc issues among Mr. Blakesley's medical problems. He assigned a global assessment of functioning (GAF) score of 38 with the highest in the past year of 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 34 (4th ed. text rev. 1994). Dr. Zvilna noted neologisms and delusional thoughts, marked disorientation, and marked shallow affect. He ...


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