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Smith v. Colvin

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

April 24, 2015

DAMIAN D. SMITH, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

DAVID W. CHRISTEL, Magistrate Judge.

The District Court has referred this action, filed pursuant to 42 U.S.C. § 405(g), to United States Magistrate Judge David W. Christel. Plaintiff filed this matter seeking judicial review of Defendant's denial of Plaintiff's application for supplemental security income ("SSI") benefits.

After considering and reviewing the record, the Court concludes the ALJ incorrectly determined the opinion of examining psychiatrist Dr. Jennifer Irwin, M.D. was based solely on Plaintiff's self-reports. In addition to Plaintiff's self-reports, Dr. Irwin's opinion was based on objective medical evidence, Plaintiff's diagnosed impairments, Dr. Irwin's personal observations, and a portion of the record. Further, the ALJ provided only a conclusory statement to support finding Dr. Irwin's opinion is not supported by the medical record. The Court also concludes the ALJ's reasons for giving "no weight" to the opinion of treating physician Dr. Vincent Phillips, M.D. are not specific and legitimate and supported by substantial evidence.

Had the ALJ fully credited the opinions of Drs. Irwin and Phillips, the residual functional capacity may have included additional limitations. The ALJ's error is therefore not harmless, and this matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further proceedings consistent with this Report and Recommendation.

FACTUAL AND PROCEDURAL HISTORY

On March 18, 2011, Plaintiff filed an application for SSI benefits, alleging disability as of August 21, 2006. See Dkt. 13, Administrative Record ("AR") 33. The application was denied upon initial administrative review and on reconsideration. See id. A hearing was held before Administrative Law Judge Mattie Harvin-Woode ("ALJ") on November 13, 2012. See AR 61-119. In a decision dated January 30, 2013, the ALJ determined Plaintiff to be not disabled. See AR 33-47. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner of Social Security ("Commissioner"). See AR 1-6; 20 C.F.R. § 404.981, § 416.1481.

In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) providing legally insufficient reasons for discrediting medical opinion evidence; (2) providing legally insufficient reasons for discrediting Plaintiff's subjective complaints; and (3) relying on improper evidence at Step Five of the sequential evaluation process. Dkt. 20.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

DISCUSSION

(1) Whether the ALJ provided legally sufficient reasons for discrediting medical opinion evidence.

a. Dr. Jennifer Irwin, M.D.

Plaintiff contends the ALJ erred in her assessment of the medical opinion evidence of examining psychiatrist Dr. Jennifer Irwin, M.D. See Dkt. 20, pp. 9-11. Specifically, Plaintiff maintains Dr. Irwin's findings were based on more than Plaintiff's self-reported symptoms, and therefore the ALJ erred when she gave no weight to Dr. Irwin's opinion for this reason. Id.

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) ( citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected "for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 ( citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ( citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

Dr. Irwin submitted a report on June 22, 2011. AR 507-11. The report was based on information obtained from a clinical interview with a mental status examination ("MSE") of Plaintiff and Dr. Irwin's review of a portion of the record. See AR 507. Dr. Irwin diagnosed Plaintiff with major depressive disorder, chronic, recurrent; pain disorder; anxiety disorder, not otherwise specified; and alcohol abuse. AR 510.

Dr. Irwin opined Plaintiff is able to perform simple and repetitive tasks, perform detailed and complex tasks, and accept instructions from supervisors. AR 511. Further, Plaintiff is markedly impaired in his ability to interact with coworkers and the public and maintain regular attendance in the workplace. Id. Dr. Irwin also found Plaintiff has a severely limited ability to deal with the usual stress encountered in the workplace and complete a normal workday/workweek without interruptions from a psychiatric condition. Id. Based on the MSE, Plaintiff's ability to perform work activities on a consistent basis without special or additional instruction is minimally impaired; however, Dr. Irwin opined Plaintiff is markedly impaired in this area according to history. Id.

The ALJ gave no weight to Dr. Irwin's opinion because the "opinion is based solely on the claimant's subjective statements and, as discussed above, the claimant is not credible." AR 43. According to the Ninth Circuit, "[an] ALJ may reject a [ ] physician's opinion if it is based to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ( quoting Morgan v. Comm'r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) ( citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). This situation is distinguishable from one in which the doctor provides her own observations in support of her assessments and opinions. See Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) ("an ALJ does not provide clear and convincing reasons for rejecting an examining physician's opinion by questioning the credibility of the patient's complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations"); see also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). According to the Ninth Circuit, "when an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) ( citing Ryan, 528 F.3d at 1199-1200).

The Court notes "experienced clinicians attend to detail and subtlety in behavior, such as the affect accompanying thought or ideas, the significance of gesture or mannerism, and the unspoken message of conversation. The [MSE] allows the organization, completion and communication of these observations." Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination 3 (Oxford University Press 1993). "Like the physical examination, the [MSE] is termed the objective portion of the patient evaluation." Id. at 4 (emphasis in original).

In forming her opinion, Dr. Irwin performed an extensive and thorough MSE, listing a number of results. AR 509-10. Dr. Irwin also reported many of her own observations. See AR 509. For example, Dr. Irwin observed Plaintiff held his head at an angle and hugged himself throughout the evaluation. Id. Plaintiff was polite and cooperative, but had decreased eye contact. Id. Dr. Irwin also noted Plaintiff had logical and goal-oriented thought processes, but had excessive storytelling and halting speech. Id. Dr. Irwin could not tell if the halting speech was due to psychomotor slowing or if it was secondary to pain. Id. Plaintiff also had suicidal ideations. Id. Dr. Irwin found Plaintiff's mood to be guarded and his affect restricted. AR 510. Dr. Irwin also based her opinion on her assessment of Plaintiff's diagnosed mental impairments and a review of Plaintiff's adult function report and a psychiatric evaluation.

Based on a review of the relevant record, the undersigned concludes Dr. Irwin's opinion of Plaintiff's limitations was based on more than Plaintiff's self-reported symptoms. Rather, Dr. Irwin provided a medical source statement based on a portion of the record, Dr. Irwin's observations, the objective results of the MSE, Plaintiff's diagnosed impairments, and Plaintiff's self-reported symptoms. Accordingly, the ALJ's finding is not supported by substantial evidence.

The ALJ also gave no weight to Dr. Irwin's opinion because "[t]he longitudinal medical evidence indicates that the claimant is not so severely limited." AR 43. The ALJ, however, has failed to specify anything from the "longitudinal medical evidence" that conflicts with Dr. Irwin's findings regarding Plaintiff's functional limitations. The ALJ provided only a conclusory statement finding the record does not support Dr. Irwin's opinion, which is insufficient to reject the opinion. See Embrey, 849 F.2d at 421-22 (conclusory reasons do "not achieve the level of specificity" required to justify an ALJ's rejection of an opinion); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an ALJ's rejection of a physician's opinion on the ground that it was contrary to clinical findings in the record was "broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed").

The ALJ incorrectly determined Dr. Irwin's report was based solely on Plaintiff's selfreported symptoms and failed to provide more than a conclusory statement when finding Dr. Irwin's opinion was not supported by the medical evidence. Accordingly, the ALJ erred in her assessment of Dr. Irwin's opinion.

The Ninth Circuit has "recognized that harmless error principles apply in the Social Security Act context." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ( citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th Cir. 2006) (collecting cases)). The Ninth Circuit noted "in each case we look at the record as a whole to determine [if] the error alters the outcome of the case." Id. The court also noted the Ninth Circuit has "adhered to the general principle that an ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination.'" Id. ( quoting Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)) (other citations omitted). The court noted the necessity to follow the rule that courts must review cases "without regard to errors' that do not affect the parties' substantial rights.'" Id. at 1118 ( quoting Shinsheki v. Sanders, 556 U.S. 396, 407 (2009) ( quoting 28 U.S.C. § 2111) (codification of the harmless error rule)).

Had the ALJ properly considered Dr. Irwin's opinion, she may have included additional limitations in the residual functional capacity ("RFC") and in the hypothetical questions posed to the vocational expert, Marilyn Thomas. The ALJ's ultimate determination regarding disability was based on an incorrectly assessed RFC and the testimony from the vocational expert that was based on the incorrect RFC, and therefore the ALJ's error is not harmless.

b. Dr. Vincent Phillips, M.D.

Plaintiff asserts the ALJ also erred by providing legally insufficient reasons for rejecting the opinion of treating physician Dr. Vincent Phillips, M.D. Dkt. 20, pp. 4-9. Dr. Phillips opined Plaintiff was totally disabled and unable to sustain full time work. AR 661. The opinion was based on Plaintiff's chronic back pain and depression. Id. Dr. Phillips noted Plaintiff's documented "extensive c-spine disease" is consistent with Plaintiff's pain and neck stiffness. Id.

The ALJ gave no weight to the opinion of Dr. Phillips because the issue of Plaintiff's ability to sustain employment is reserved to the Commissioner and the opinion is inconsistent with the objective medical evidence. AR 45. The ALJ failed to identify anything from the objective medical evidence in conflict with Dr. Phillips's findings. The ALJ provided only a conclusory statement finding the record does not support Dr. Phillips's opinion, which is insufficient to reject the opinion. See Embrey, 849 F.2d at 421-22.

Further, it is not clear Dr. Phillips's opinion regarding Plaintiff's ability to work is reserved to the Commissioner. A doctor's opinion stating it is unlikely a claimant could sustain full-time competitive employment may not be a conclusion reserved to the Commissioner; rather, it may be "an assessment based on objective medical evidence of [the claimant's] likelihood of being able to sustain full-time employment given the many medical and mental impairments [the claimant] faces[.]" Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) ( citing 20 C.F.R. § 404.1527(d)(1)). In this case, Dr. Phillips's opinion appears to be an assessment of Plaintiff's likelihood of being able to sustain full-time employment, and therefore the ALJ's reason for rejecting Dr. Phillips's opinion is not legitimate.

As the ALJ failed to provide specific and legitimate reasons supported by substantial evidence to discredit the opinion of Dr. Phillips, the ALJ erred in her assessment of Dr. Phillips's opinion. This error affects the RFC assessment and the vocational expert's testimony, and therefore the ultimate determination regarding disability. Accordingly, the error is not harmless.

(2) Whether the ALJ provided legally insufficient reasons for discrediting Plaintiff's subjective complaints.

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) ( quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834. "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

In this case, the ALJ found Plaintiff's testimony concerning the intensity, persistence, and limiting effects of his symptoms not fully credible, and provided a number of clear and convincing reasons in support. See AR 38-43. The ALJ reasonably considered: (1) medical evidence contradicting and/or failing to support the degree of limitation, Carmickle, 533 F.3d at 1161 ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.") ( citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); (2) Plaintiff's inconsistent statements, including inconsistent statements regarding marijuana use; (3) Plaintiff's activities of daily living, including riding a bike, washing windows and cleaning out the garage, indicated a greater level of physical capacity than alleged, Molina, 674 F.3d at 1112-13; (4) Plaintiff's drug seeking behavior; and (5) Plaintiff's apparent exaggerated demeanor at the ALJ hearing. AR 42-43.

Plaintiff challenges some of the ALJ findings, but fails to demonstrate the ALJ's interpretation of the evidence was not rational or otherwise show the ALJ erred. See Dkt. 20, pp. 11-13. Accordingly, the ALJ need only reconsider Plaintiff's credibility as necessitated by further consideration of the medical opinion evidence from Drs. Irwin and Phillips.

(3) Whether the ALJ improperly assessed Plaintiff's residual functional capacity and erred by basing his step five findings on the improper residual functional capacity.

Plaintiff also argues the ALJ erred in her determination of Plaintiff's RFC and in relying on the improper RFC to find Plaintiff was able to perform other jobs found in the national economy at Step Five. Dkt. 20, p. 13. As the ALJ improperly assessed the opinions of Drs. Irwin and Phillips, the Court concluded the ALJ erred in the RFC assessment and therefore in relying on improper testimony to find Plaintiff not disabled at Step Five. See Section 1.a. Accordingly, on remand the ALJ must assess Plaintiff's RFC anew and must reassess her Step Five finding based on the new RFC determination.

Although Plaintiff argues in a conclusory manner this matter should be remanded with a direction to award benefits, see Dkt. 20, p. 11, the Court concludes it would be inappropriate to do so because it is unclear if the ALJ would be required to find Plaintiff disabled if the improperly discredited evidence was credited as true. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) ( citing Ryan, 528 F.3d at 1202).

CONCLUSION

Based on the above stated reasons and the relevant record, the undersigned recommends that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further proceedings consistent with this Report and Recommendation. JUDGMENT should be for plaintiff and the case should be closed.

Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on May 15, 2015, as noted in the caption.


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