United States District Court, W.D. Washington, Seattle
ORDER ON REPORT AND RECOMMENDATION
MARSHA J. PECHMAN, Chief District Judge.
THE COURT, after careful consideration of the Honorable Magistrate Judge John L. Weinberg's Report and Recommendation (Dkt. No. 21), Plaintiff Linda M. Kane's Objections to Report and Recommendation (Dkt. No. 22), and Defendant Carolyn W. Colvin's Response to Plaintiff's Objections (Dkt. No. 23), ADOPTS the Report and Recommendation as to Plaintiff's second, third, and fourth issues, and DECLINES TO ADOPT the Report and Recommendation as to Plaintiff's first issue. Finding legal error in the weight accorded to the opinion of treating physician Timothy Burner by the ALJ, the Court REVERSES the Commissioner's decision and REMANDS the case for further proceedings consistent with this opinion.
Plaintiff's Objections raises three issues: (1) whether proper weight was given to treating physician Timothy Burner's opinion; (2) whether the opinion of Cheryl Hart, Psy. D., was properly considered; and (3) whether the finding that Plaintiff had past relevant work as a bookkeeper was correct. (Dkt. No. 22 at 2.) Plaintiff raises a fourth issue at step five, but this was not reached by Judge Weinberg's Report and Recommendation because the ALJ's step four finding was affirmed. (Id.) Plaintiff now asks the Court to decline to adopt the Report and Recommendation and to remand the case for further consideration. (Id. at 10.)
I. Legal Standard
Under Federal Rule of Civil Procedure 72, the district judge must resolve de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed.R.Civ.P. 72(b)(3); See also 28 U.S.C. § 636(b)(1).
II. Whether ALJ gave sufficient reason for rejecting opinion of Timothy Burner
The Court finds the ALJ erred by giving "little weight" to the opinion of treating physician Timothy Burner without legitimate reasoning supported by substantial evidence in the record. The Court finds the error was not harmless because it was significant to the ALJ's ultimate disability determination, and therefore REVERSES the determination and REMANDS the case to the Social Security Administration for further proceedings consistent with this order.
A. Evidence in the record
An ALJ may not reject a treating physician's opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007). The ALJ gave "little weight" to Dr. Burner's opinion because Dr. Burner did not attach any medical evidence or narrative statement to explain his opinion, and because the ALJ found his treatment notes inconsistent with his disability opinion. (Dkt. No. 21 at 7-8.)
The Court agrees with Judge Weinberg that, contrary to the ALJ's determination, the record contains medical evidence which Dr. Burner relied on, some of which is cited to by the ALJ, and that nothing in Dr. Burner's treatment records directly contradicts the opinions he expressed on the disability forms. (Dkt. No. 21 at 7-8.) The Court agrees with Plaintiff, however, that Dr. Burner's opinion contained narrative statements which explain his opinions. Dr. Burner states, for example, that "pain and weakness both arms from scar tissue from prior infections, prior ulnar nerve damage, " would affect the amount of weight Plaintiff could lift. (Dkt. No. 14-8 at 109.) This was not accounted for by the ALJ. Dr. Burner also explains that scar tissue and contracture in Plaintiff's arms affect her reaching, handling, fingering, feeling, and pushing/pulling abilities. (Id. at 111-12.) This is also not discussed by the ALJ's opinion.
The ALJ then found that Dr. Burner's 2011 disability opinion was not consistent with his own medical records because there is no previous mention of ulnar nerve damage or of knee pain. (Dkt. No. 14-2 at 30.) The ALJ concluded that because there is no explanation for this discrepancy, Dr. Burner's opinion was entitled to "little weight." (Id.) However, earlier in the ALJ's opinion, the ALJ cites to a 2003 diagnosis by Dr. Burner of tendonitis in Plaintiff's knee. (Dkt. No. 14-2 at 28.) This tendonitis is referenced by Dr. Burner in his August 2011 opinion form. (Dkt. No. 14-8 at 111.) The ALJ's determination that there is "no mention of knee pain" in the record is not supported by substantial evidence, as demonstrated by this internal inconsistency within the ALJ's own opinion.
While there is no specific ulnar nerve damage diagnosis in the record, Dr. Burner states that he has been treating Plaintiff's arms since 2000, and mentions several issues with Plaintiff's arms relevant to a disability determination regarding Plaintiff's ability to lift, push, pull etc. (Dkt. No. 14-8 at 109.) Dr. Burner's lengthy history of treatment of Plaintiff's arms, and the insight that affords, is exactly why the Social Security Administration has instructed that greater weight be given to a treating physician's opinion. The ALJ's decision to discount the opinion of a treating physician based only on one reference to ulnar nerve ...