United States District Court, W.D. Washington
ORDER ON PLAINTIFF'S COMPLAINT
W. Christel United States Magistrate Judge
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.
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.
& FACTUAL HISTORY
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.
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.
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.
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.
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)).
Whether the ALJ Properly Evaluated the Medical Opinion
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
Application of Standard
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.
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.
gave Dr. Goodwin's opinion little weight for three
 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
 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.
 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.
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
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