United States District Court, W.D. Washington, Tacoma
ORDER VACATING DEFENDANT'S DECISION TO DENY
W. Christel United States Magistrate Judge.
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.
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.
AND PROCEDURAL HISTORY
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,
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
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
Whether the ALJ properly weighed the medical opinion
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.
asserts the ALJ erred by failing to properly consider the
opinion of examining psychologist Dr. Neims. Dkt. 16 at 4-7.
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.
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 ...