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Jaquay v. Berryhill

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

August 16, 2017

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


          David W. Christel United States Magistrate Judge.

         Plaintiff Yvonne Marie Jaquay filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her application for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 9.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) failed to properly consider the medical opinion evidence of examining physicians Drs. Dan Neims, Psy.D. and Sorino S. Rhone, M.D. Had the ALJ properly considered their opinions, the residual functional capacity (“RFC”) assessment may have included additional limitations. Therefore, the ALJ's error is harmful. The Court orders the Commissioner's final decision be vacated in its entirety and this matter remanded pursuant to sentence four of 42 U.S.C. § 405(g) for a de novo hearing consistent with this Order.


         On September 17, 2013, Plaintiff filed an application for SSI and DIB, alleging disability as of January 1, 2010. See Dkt. 14, Administrative Record (“AR”) 19. The application was denied upon initial administrative review and upon reconsideration. AR 19. Plaintiff filed a written request for a hearing on April 18, 2014. AR 19. ALJ Cynthia D. Rosa heard the matter on April 21, 2015. AR 43-77. In a decision dated July 31, 2015, the ALJ determined Plaintiff to be not disabled. See AR 19-37. 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. See AR 1-6; 20 C.F.R. §§ 404.981, 416.1481.

         In Plaintiff's Opening Brief, she maintains the ALJ failed to: (I) properly weigh medical opinion evidence by giving little or reduced weight to Drs. Neims and Rhone's opinions; and (II) provide clear and convincing reasons for discounting Plaintiff's testimony. See Dkt. 16 at 1-2.


         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)).


         I. Whether the ALJ properly weighed the medical opinion evidence.

         Plaintiff contends the ALJ erred in her evaluation of the medical opinion evidence of examining physicians Drs. Neims and Rhone. Dkt. 16 at 4-10. Defendant asserts the ALJ properly considered and weighed all medical opinion evidence. Dkt. 23.

         A. Dr. Neims

         Plaintiff asserts the ALJ erred by failing to properly consider the opinion of examining psychologist Dr. Neims. Dkt. 16 at 4-7.

         In November of 2013, Dr. Neims completed a psychological diagnostic evaluation regarding Plaintiff's functional abilities. See AR 400-10. Dr. Neims reviewed portions of Plaintiff's medical records, conducted a clinical interview, observed Plaintiff, and conducted a mental status examination (“MSE”). AR 400-06. He diagnosed Plaintiff with a recurrent, marked, major depressive episode, anxiety disorder, psychological factors affecting physical condition, and Cluster B features. AR 401. He opined Plaintiff will have moderate difficulty in several basic work activities, such as learning new tasks and making simple work-related decisions. AR 402. He further opined Plaintiff will have marked difficulty asking simple questions or requesting assistance, communicating and performing effectively in a work setting, completing a normal work day and work week without interruptions from psychologically based symptoms, and maintaining appropriate behavior in a work setting. AR 402. He concluded Plaintiff is not capable of substantial gainful employment. AR 408.

         The ALJ summarized Dr. Neims' opinion and then stated:

Little weight is given to Dr. Neims' opinion. (1) Dr. Neims did not have the benefit of considering the later examination by Dr. Pickett, discussed below. (2) The examination by Dr. Pickett indicates that the claimant was largely motivated by secondary gain, which Dr. Neims did not adequately consider. Furthermore, (3) the marked limitations found by Dr. Neims are inconsistent with clinical observations in the record discussed throughout this decision. For example, the claimant was often observed to be cooperative, pleasant, with a normal affect, intact memory, and she reported good results from her medications. (4) The claimant's various activities are also inconsistent with the degree of incapacity found by Dr. Neims. For example, the claimant was able to independently shop, she was careful about how she compared groceries while shopping, and she worked part-time for years ...

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