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Harrison v. Berryhill

United States District Court, W.D. Washington

April 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff filed this action, pursuant to 42 U.S.C § 405(g), seeking judicial review of the denial of Plaintiff's application for Disability Insurance Benefits (“DIB”). The parties have consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13. See also Consent to Proceed before a United States Magistrate Judge, Dkt. 7.

         After reviewing the record, the Court concludes the Administrative Law Judge (“ALJ”) erred by failing to properly evaluate the medical opinion evidence. Therefore, this matter is reversed and remanded, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings.


         On July 7, 2011, Plaintiff filed an application for DIB. See Dkt. 8, Administrative Record (“AR”) 284. Plaintiff alleges she became disabled on June 8, 2011, due to fibromyalgia, chronic fatigue syndrome, neuropathy, and gastroesophageal reflux disease. See AR 284, 327. Plaintiff's application was denied upon initial administrative review and on reconsideration. See AR 112, 125. A hearing was held before ALJ Verrell Dethloff on January 23, 2013, at which Plaintiff, represented by counsel, appeared and testified. See AR 53.

         On March 25, 2013, the ALJ found Plaintiff was not disabled within the meaning of Sections 216(i) and 223(d) of the Social Security Act. AR 168. Plaintiff's request for review of the ALJ's decision was granted by the Appeals Council on August 26, 2014. AR 176. On remand, the Appeals Council instructed the ALJ to reevaluate the medical opinion evidence- specifically, to further develop the analysis of Plaintiff's examining psychologist, Theoore Becker, Ph.D. AR 177.

         On remand, ALJ Glenn Meyers again found Plaintiff was not disabled within the meaning of Sections 216(i) and 223(d) of the Social Security Act. AR 43. Plaintiff's second request for review was denied by the Appeals Council on September 22, 2016, making that decision the final decision of the Commissioner of Social Security (the “Commissioner”). See AR 1, 20 C.F.R. § 404.981, § 416.1481. On October 18, 2016, Plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision.

         Plaintiff argues the denial of benefits should be reversed and remanded for further proceedings, because: 1) the ALJ erred in evaluating the medical opinion evidence; 2) the ALJ erred by improperly discounting Plaintiff's testimony; 3) the ALJ improperly rejected the lay witness testimony; 4) the ALJ failed to meet his burden at Step Five of demonstrating there were other jobs Plaintiff could perform at Step Five; and 5) evidence presented to the Appeals Council but not included in the administrative record renders the ALJ's decision unsupported by substantial evidence in the record as a whole. Dkt. 10, p. 1.


         Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits only 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)). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such “‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).


         I. Whether the ALJ Properly Evaluated the Medical Opinion Evidence.

         A. Standard

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician or psychologist. 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)). However, “[i]n order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record.” Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81 F.3d at 831). 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, 881 F.2d at 751). In addition, the ALJ must explain why the ALJ's own interpretations, rather than those of the doctors, are correct. Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). The ALJ “may not reject ‘significant probative evidence' without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))). The “ALJ's written decision must state reasons for disregarding [such] evidence.” Flores, 49 F.3d at 571.

         B. Application of Standard

         1.Glenn Goodwin, Ph.D.

         Dr. Goodwin conducted a two-day neuropsychological evaluation of Plaintiff from October 1 to October 2, 2012. AR 867. As part of his review, Dr. Goodwin conducted a clinical interview, medical records review, mental status examination, validity assessments such as the MMPI-2, WAIS-IV, and TOMM, and other mental health testing, including the WAIS-IV, BDI-II, and BAI. AR 848-64. On examination, Plaintiff presented as pleasant and cooperative, with a mildly depressed mood and affect. AR 856. Dr. Goodwin noted Plaintiff reported and exhibited signs of chronic pain. AR 858. Plaintiff demonstrated adequate effort and motivation, and was involved in the testing process. AR 857. Dr. Goodwin noted Plaintiff presented with generally adequate attention and concentration; however, Dr. Goodwin noted Plaintiff reported increasing difficulty concentrating as testing progressed. AR 857. Plaintiff's performance on the various measures fell between “average” or “below-average” to “severely impaired.” AR 859-62.

         Dr. Goodwin concluded “the interactive and synergistic effect of chronic pain and chronic fatigue appear to be the primary functional issues from a neuropsychological standpoint.” AR 865. Citing Plaintiff's consistently below-average performance on measures of attention, concentration, and processing speed, as well as her decrease in cognitive stamina and increase in fatigue over time, Dr. Godwin concluded:

I do not believe [Plaintiff] is work tolerant from [a] neuropsychological standpoint. There is clear evidence of objective impairment on cognitive testing accompanied by observations made over the two-day process that revealed susceptibility to fatigue and interference from pain, which contributed to some decline in her cognitive stamina and endurance. Projecting this picture into a typical work week, with consecutive workdays, strongly suggests that she would not be able to maintain effective and efficient work performance on a reasonably continuous basis. Her continuing neuropsychological presentation is best understood as being multifactorial, with primary features of chronic pain, chronic fatigue, adverse effects of her current regimen of medications, and secondary adjustment difficulties with features of anxiety and depression.
The findings from this neuropsychological study are generally consistent with the recent physical capacity examination. The issue here is not that she lacks the cognitive and emotional capacity for occupational performance, but rather would experience a diminishing level of continuing effectiveness in the level of occupational functioning that is required in any competitive employment setting on a day-in and day-out basis over a typical work week.

AR 866.

         The ALJ gave Dr. Goodwin's opinion little weight for three reasons:

[1] Of the claimant he stated that the evidence “ . . . strongly suggests that she would not be able to maintain effective and efficient work performance on a reasonably continuous basis.” [AR 862]. However, such a conclusion contains no specific vocational restrictions. It is essentially a finding that the claimant is “disabled” or “cannot work, ” which is not an opinion, but a legal conclusion reserved to the Commissioner.
[2] Moreover, the opinion does not seem entirely consistent with Dr. Goodwin's own findings. For instance, even though the claimant reported feeling tired, and having cold-like symptoms and pain, Dr. Goodwin noted that her attention, concentration, persistence, and processing speed were good during the evaluation on both days. Even though she reported difficulty with word finding difficulties [sic], Dr. Goodwin found no observable difficulties in the claimant's reception, expression, or articulation. Dr. Goodwin also administered various tests, most of which reflected performance in the overall average range.
[3] Furthermore, Dr. Goodwin based his opinion at least partially on the claimant's subjective report, indicating that he considered the claimant's “described history” in forming his opinion [AR 866]. However, as discussed above, the claimant's report is generally not credible. Also, unlike Dr. Hellings' opinion, Dr. Goodwin's opinion is not consistent with the findings in overall [sic] medical record.

AR 40. Plaintiff argues these were not specific and legitimate reasons for discounting Dr. Goodwin's opinion, and the Court agrees.

         First, the Ninth Circuit has held opinions of the type rendered by Dr. Goodwin do not constitute an opinion as to the ultimate issue of disability. See Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012). In Hill, the ALJ failed to consider the opinion of an examining psychologist who opined a claimant's “combination of mental and medical problems makes the likelihood of sustained full time competitive employment unlikely.Id. (emphasis in original). The Ninth Circuit found this was not a conclusion about the ultimate issue of disability as described in 20 C.F.R. § 404.1527(d)(1), but was “instead an assessment, based on objective medical evidence, of Hill's likelihood of being able to sustain full time employment given the many medical and mental impairments Hill faces and her inability to afford treatment for those conditions.” Id. (emphasis in original). Thus, the ALJ's failure to consider the examining psychologist's opinion in Hill was harmful error.

         Here, similarly, Dr. Goodwin opined Plaintiff's neuropsychological symptoms, arising out of her physical and mental impairments, would likely prevent her from sustaining adequate pace and performance on a reasonably continuous basis for a forty-hour work week. AR 866. Dr. Goodwin based this opinion on objective medical evidence he obtained during his examination. While not couched in the precise vocational terminology typically used in Social Security evaluations, Dr. Goodwin's opinion is an opinion as to Plaintiff's ability to conduct work-related activities throughout a ...

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