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Shifflett v. Colvin

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

February 18, 2015

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 his 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 be reversed and this matter be remanded for further administrative proceedings.


On June 21, 2011, plaintiff filed applications for disability insurance benefits ("DIB") and SSI, alleging in both applications disability beginning August 1, 2008, due to his back, knees, and depression. See Dkt. 10, Administrative Record ("AR") 20, 325. Both applications were denied upon initial administrative review on September 8, 2011 and on reconsideration on December 8, 2011. See AR 20. A hearing was held before an administrative law judge ("ALJ") on October 9, 2012, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 39-77.

In a decision dated December 5, 2012, the ALJ determined plaintiff to be not disabled. See AR 20-32. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on March 19, 2014, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1-6; 20 C.F.R. § 404.981, § 416.1481. On May 12, 2014, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See Dkt. 1. The administrative record was filed with the Court on August 11, 2014. See Dkt. 10. The parties have completed their briefing, and thus this matter is now ripe for the Court's review.

Plaintiff argues defendant's decision to deny benefits should be reversed and remanded for further administrative proceedings, because the ALJ erred: (1) by failing to properly consider the state agency medical consultants; and (2) by failing to give specific and legitimate reasons for rejecting the opinions of two treating physicians. Plaintiff also argues that the ALJ de facto reopened plaintiff's prior applications. For the reasons set forth below, the undersigned agrees the ALJ erred in rejecting the opinions of Dr. Rozenfeld, Dr. Regets, Dr. Staker, and Dr. Tartalia, and therefore in determining plaintiff to be not disabled. In addition, the ALJ took actions that resulted in a de facto reopening of plaintiff's prior applications. Also for the reasons set forth below, the undersigned recommends that while defendant's decision to deny benefits should be reversed, this matter should be remanded for further administrative proceedings.


The determination of 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

The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence in the record is not conclusive, "questions of credibility and resolution of conflicts" are solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, "the ALJ's conclusion must be upheld." Morgan v. Commissioner of the Social Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Determining whether inconsistencies in the medical evidence "are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount" the opinions of medical experts "falls within this responsibility." Id. at 603.

In resolving questions of credibility and conflicts in the evidence, an ALJ's findings "must be supported by specific, cogent reasons." Reddick, 157 F.3d at 725. 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, 694 F.2d at 642. 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 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. However, the ALJ "need not discuss all evidence presented" to him or her. Vincent on Behalf of Vincent v. Heckler, 739 F.3d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original). The ALJ must only explain why "significant probative evidence has been rejected." Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984).

In general, more weight is given to a treating physician's opinion than to the opinions of those who do not treat the claimant. See Lester, 81 F.3d at 830. On the other hand, an ALJ need not accept the opinion of a treating physician, "if that opinion is brief, conclusory, and inadequately supported by clinical findings" or "by the record as a whole." Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An examining physician's opinion is "entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830-31. A non-examining physician's opinion may constitute substantial evidence if "it is consistent with other independent evidence in the record." Id. at 830-31; Tonapetyan, 242 F.3d at 1149.

a. Dr. Ellen Rozenfeld, Psy.D. and Michael Regets, Ph.D - Non-examining consultants

Plaintiff first argues that the ALJ did not properly consider the opinions of state agency medical consultants Dr. Ellen Rozenfeld, Psy.D. and Dr. Michael Regets, Ph.D. See Dkt. 12. According to Social Security Ruling 96-6p, state agency medical consultants, while not examining doctors, "are highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims under the Act." SSR 96-6p, 1996 WL 374180 *2. Therefore, regarding state agency medical consultants, the ALJ is "required to consider as opinion evidence" their findings, and also is "required to explain in his decision the weight given to such opinions." Sawyer v. Astrue, 303 Fed.Appx. 453, 455 (9th Cir. 2008) ( citing 20 C.F.R. § 416.927(f)(2)(i)-(ii); SSR 96-6p, 1996 WL 374180 *2). The ALJ "may reject the opinion of a non-examining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) ( citing Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996)); Andrews, supra, 53 F.3d at 1041).

Regarding the opinions of Dr. Rozenfeld and Dr. Regets, the ALJ found the following:

State agency psychologists Ellen Rozenfeld PsyD and Michael Regets PhD opined that the claimant would be able to perform simple, routine tasks with some limited complex tasks; could engage in work activity within an average schedule and work week the majority of the time; can occasionally interact with the general public; can handle supervisory contact; can work in proximity to coworkers, but not on joint or shared tasks; and would do best in a predictable work setting where changes are routine in nature (10A, 11A). This assessment is consistent with the claimant's overall intact cognition on mental status exam, and with daily activities described above, which include using a computer for reading, watching shows, and playing video games. However, it does not adequately consider the claimant's lack of treatment for the reported depressive symptoms. I give this assessment some weight.

AR 28.

Under Social Security Ruling 96-7p, the ALJ "must not draw any inferences" about a claimant's symptoms and their functional effects from a failure to seek treatment, "without first considering any explanations" that the claimant "may provide, or other information in the case record, that may explain" that failure. SSR 96-7p, 1996 WL 374186 *7. Here, the ALJ questioned plaintiff about his lack of treatment for his back, and plaintiff testified that he had not had much treatment due to a lack of insurance. AR 51. Plaintiff also testified that he did not have the money or insurance to continue with physical therapy. AR 57. The ALJ addressed plaintiff's lack of insurance, and found that plaintiff's impairments were not as severe as he alleged because there was little evidence that plaintiff sought follow-up care though an emergency room or lowcost clinic during the time period he lacked insurance despite complaints of a high level of pain. AR 27.

The ALJ, however, did not question plaintiff regarding his lack of mental health treatment, or address in her opinion any reasons for plaintiff's lack of mental health treatment. As the record is silent as to the reason plaintiff lacked treatment for his alleged depressive symptoms, the ALJ's finding that the opinions of Dr. Rozenfeld and Dr. Regets should be discredited due to plaintiff's limited mental health treatment was improper. See Harbison v. Colvin, 2014 WL 3867650 *5 (W.D. Wash. Aug. 5, 2014) (the ALJ's decision to discredit a physician's opinion because of the plaintiff's limited mental health treatment was improper when the ALJ did not question the plaintiff about his lack of treatment or address it in the decision).

Plaintiff contends that the ALJ's error was harmful because Dr. Rozenfeld and Dr. Regets opined that plaintiff could engage in work activity within an average schedule and work week only a majority of the time. See Dkt. 12, p. 10. Defendant maintains that the state agency opinions are not clearly inconsistent with the ALJ's findings, and thus any error is harmless. See Dkt. 15, p. 4. "[H]armless error principles apply in the Social Security context." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is nonprejudicial to the claimant or "inconsequential" to the ALJ's "ultimate nondisability determination." Stout v. Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115; Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007). The determination as to whether an error is harmless requires a "case-specific application of judgment" by the reviewing court, based on an examination of the record made "without regard to errors' that do not affect the parties' substantial rights.'" Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)).

"[T]he fact that the administrative law judge, had she considered the entire record, might have reached the same result does not prove that her failure to consider the evidence was harmless. Had she considered it carefully, she might well have reached a different conclusion." Hollingsworth v. Colvin, 2013 WL 3328609 *4 (W.D. Wash. July 1, 2013) (quoting Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). Had the ALJ fully credited the opinions of Dr. Rozenfeld and Dr. Regets, the ALJ may have included additional limitations in the RFC and in the hypothetical questions posed to the vocational expert regarding plaintiff's ability to engage in work activity within an average schedule and work week. The ultimate disability decision may have changed, and thus the error is not harmless.

b. Dr. Lynn Staker, M.D. - Examining physician

Plaintiff maintains that the ALJ erred when she gave little weight to the opinions of examining physician Dr. Lynn Staker, M.D. See Dkt. 12, pp. 12-14. Dr. Staker submitted three reports dated September 2009, March 2011 and June 2012. AR 479-84, 504-08, 512-16. Plaintiff asserts that the ALJ erred in her assessment of Dr. Staker's September 2009 and June 2012 opinions.

In September of 2009, Dr. Staker opined that plaintiff's overall work level was sedentary and plaintiff was limited in the areas of bending, climbing, crouching and stooping due to his degenerative disc disease and early degenerative changes of the medial compartment of his right knee. AR 480, 483. Dr. Staker found the limitations would last six months. AR 484.

The ALJ gave this assessment little weight because Dr. Staker did not review an MRI of plaintiff's knee, which showed no internal derangement or meniscal tear. AR 29. Dr. Staker noted that plaintiff needed an MRI to rule out internal derangement or a meniscal tear. AR 480. However, the record does not indicate that Dr. Staker based his limitations on a finding that plaintiff had internal derangement or a meniscal tear in his knee. See AR 480, 483. The ALJ fails to show how Dr. Staker's failure to review the MRI had any affect on his opinion.

The ALJ also gave little weight to this opinion because the opinion does not cover a continuous period of twelve months. AR 29. Dr. Staker estimated that the overall limitations on plaintiff's work activities would continue for six months without medical treatment. AR 484. To be disabled, plaintiff must be unable to work due to a medically determinable impairment that is expected to result in death or last at least twelve months. 20 C.F.R. §§ 404.1505, 416.905. As Dr. Staker opined that plaintiff's limitations would not last the required twelve months, the ALJ properly rejected Dr. Staker's opinion. This reason alone is sufficient to reject a medical opinion, and thus the ALJ did not commit harmful error by rejecting Dr. Staker's opinion. See Patnaude v. Colvin, 2013 WL 4718970, *4 (E.D. Wash. Sept. 3, 2013) (finding a physician's opinion that limitations would not last twelve months was alone sufficient to reject the assessment).

In June of 2012, Dr. Staker evaluated plaintiff and found that plaintiff's major problems were his weight and the swelling and edema of his lower extremities. AR 514. Dr. Staker did note arthritic changes in plaintiff's knees and back. Id. Regarding his knees and back, Dr. Staker opined that plaintiff had significant limitations in walking, standing, kneeling, bending, and heavy lifting, and Dr. Staker opined that plaintiff was not employable. Id.

The ALJ first gave Dr. Staker's opinion little weight because Dr. Staker gave no clear, specific functional limitations. AR 30. Dr. Staker did not check all of the boxes on the functional assessment form attached to his report, but rather checked some boxes and wrote "see report". AR 515-16. In his report, Dr. Staker opined that plaintiff had "significant" postural and extertional limitations. AR 514. The ALJ's finding that Dr. Staker provided no "clear, specific functional limitations" is contradicted by the record, and thus not supported by substantial evidence.

The ALJ also gave little weight to Dr. Staker's June 2012 opinion because it was not clear how long the swelling and pitting edema had been present, yet Dr. Staker based his opinion on this diagnosis. AR 30. Dr. Staker based his opined limitations on plaintiff's back and knee problems, and noted that plaintiff needed treatment for the swelling and edema. See AR 514. The length of time the swelling and edema had been present is not probative of Dr. Staker's opinion about plaintiff's limitations. This reason for rejecting Dr. Staker's June 2012 opinion is not specific and legitimate and supported by substantial evidence.

In addition, the ALJ gave little weight to Dr. Staker's opinion that plaintiff is not employable because the decision of whether plaintiff is disabled is reserved for the Commissioner. AR 30. Plaintiff does not challenge this finding.

Had the ALJ fully credited the June 2012 opinion of Dr. Staker, the ALJ may have included additional limitations in the RFC and in the hypothetical questions posed to the vocational expert regarding the severity of plaintiff's extertional and postural limitations. The ultimate disability decision may have changed, and thus the error is not harmless.

c. Dr. Clifford Tartalia, M.D. - Examining physician

Plaintiff argues that the ALJ erred when she rejected the opinions of examining physician Dr. Clifford Tartalia, M.D. See Dkt. 12, pp.14-17. Defendant concedes that the reasons given by the ALJ for rejecting the opinion of Dr. Tartalia were unsupported by substantial evidence. See Dkt. 15, pp.4-5. However, defendant maintains that any error is harmless because the ALJ clearly stated her interpretation of the evidence and explained how it supported her findings. Id. at 5-6.

Dr. Tartalia opined that, "in a well structured, low stress work milieu" plaintiff may have the ability to perform some simple and repetitive tasks, and accept instructions from supervisors and/or interact with his coworkers and the public. AR 503. Dr. Tartalia also found that plaintiff would be unable to maintain regular work attendance or complete a normal workday/workweek without significant interruptions, would unlikely be able to perform work activities on a consistent basis without significant special or additional instruction, and would unlikely be able to deal with usual workplace stressors. Id. Several of Dr. Tartalia's opined limitations were not included in the RFC assessment. See AR 25.

As conceded by defendant, the ALJ failed to provide specific and legitimate reasons to discredit Dr. Tartalia's opinion. Dr. Tartalia's opinion included limitations not contained in the RFC or posed as hypothetical questions to the vocational expert. Thus, had the opinion been given weight, the disability determination may have changed. As such, the error is not harmless. See Molina, 674 F.3d at 1115.

II. De facto Reopening of Plaintiff's Previous Applications

The Commissioner may apply administrative res judicata "to bar reconsideration of a period with respect to which she has already made a determination, by declining to reopen the prior application." Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996). The Commissioner's refusal to reopen a decision regarding an earlier period in general is "not subject to judicial review." Id. This is because, once an administrative decision becomes final, the Commissioner's decision to reopen a disability claim is "purely discretionary." Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985). Further, since a discretionary decision is not a "final decision" within the meaning of 42 U.S.C. § 405(g), the Commissioner's refusal to reopen that decision "is not a final' decision subject to judicial review." Id. (citations omitted).

One exception to the application of this doctrine is "where the Commissioner considers on the merits' the issue of the claimant's disability during the already-adjudicated period." Lester, 81 F.3d at 827; see also Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001). If "such a de facto reopening occurs, the Commissioner's decision as to the prior period is subject to judicial review." Lester, 81 F.3d at 827. "[W]here the discussion of the merits is followed by a specific conclusion that the claim is denied on res judicata grounds, " though, "the decision should not be interpreted as re-opening the claim and is therefore not reviewable." Krumpelman, 767 F.2d at 589 (citing McGowen v. Harris, 666 F.2d 60, 68 (4th Cir. 1981)).

Plaintiff argues that the ALJ reopened his prior applications of March 2009 and August 2009 because the ALJ knew of the previous applications, considered evidence from the period covered by the prior applications, and accepted the August 1, 2008 alleged onset date without comment. See Dkt. 12 pp. 17-18. Defendant provides no response to this argument. See Dkt. 15.

Plaintiff filed prior applications for disability insurance benefits and SSI alleging a disability onset date of November 1, 2007. See AR 230-237. Plaintiff's applications were denied upon initial review on May 20, 2009 and September 4, 2009, and the applications were not appealed further. See AR 78-82. In her decision, the ALJ does not reference plaintiff's prior applications or earlier alleged onset date. The ALJ discussed medical evidence from May 7, 2009, which falls within the already adjudicated time period. See AR 29, 407. The ALJ also accepted plaintiff's alleged onset date of August 1, 2008. See AR 20, 22. Further, the ALJ determined plaintiff was not disabled as far back as August 1, 2008, which was well before plaintiff's initial applications were denied. See AR 32.

As the record contained plaintiff's previous applications, the ALJ discussed evidence from the previously adjudicated period, and accepted plaintiff's alleged disability onset date beginning during a previously adjudicated period, the ALJ considered "on the merits" the issue of plaintiff's disability during an already adjudicated period. The undersigned concludes that the ALJ's actions were a de facto reopening, and recommends this matter be remanded to the Commissioner for consideration of the evidence as of August 1, 2008, the alleged onset date.

III. This Matter Should Be Remanded for Further Administrative Proceedings

The Court may remand this case "either for additional evidence and findings or to award benefits." Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ's decision, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Thus, it is "the unusual case in which it is clear from the record that the claimant is unable to perform gainful employment in the national economy, " that "remand for an immediate award of benefits is appropriate." Id.

Benefits may be awarded where "the record has been fully developed" and "further administrative proceedings would serve no useful purpose." Smolen, 80 F.3d at 1292; Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant's] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.

Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). As issues still remain in regard to the medical evidence in the record concerning plaintiff's functional capabilities, and thus his ability to perform other jobs existing in significant numbers in the national economy, remand for further consideration of those issues is warranted.


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 decision to deny benefits and remand this matter for further administrative proceedings in accordance with the findings contained herein.

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 March 6, 2015, as noted in the caption.

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