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Wolfsbruder v. Berryhill

United States District Court, W.D. Washington

August 28, 2017

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


          BRIAN A. TSUCHIDA United States Magistrate Judge

         Elric Wolfsbruder seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred in evaluating the medical evidence and the lay witness testimony. Dkt. 17. The Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).


         Mr. Wolfsbruder is currently 44 years old, has a high school education and has worked as a systems analyst. Tr. 41, 67, 202. In August 2013, he applied for benefits, alleging disability as of November 1, 2009; he later amended his alleged onset date to February 14, 2012. Tr. 38, 202, 209. After his applications were denied, the ALJ conducted a hearing and, on July 31, 2015, issued a decision finding Mr. Wolfsbruder not disabled. Tr. 19-31. The Appeals Council denied Mr. Wolfsbruder's request for review, making the ALJ's decision the Commissioner's final decision. Tr. 1.


         Utilizing the five-step disability evaluation process, [1] the ALJ found that Mr. Wolfsbruder had not engaged in substantial gainful activity since the alleged onset date; he had the following severe impairments: degenerative disc disease, sleep disorder, obesity, migraines, affective disorder, anxiety disorder, and somatoform disorder; and that these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 21-22. The ALJ found that Mr. Wolfsbruder had the residual functional capacity to perform light work with some exceptions; he is able to understand, remember, and carry out instructions and tasks generally required by occupations with a Specific Vocational Preparation (SVP) of one or two; he can have occasional superficial interaction with the general public and is able to make adjustment to workplace changes generally associated with occupations with an SVP of one or two. Tr. 24. The ALJ found that Mr. Wolfsbruder was unable to perform his past work, but, as there were jobs that exist in significant numbers in the national economy that he can perform, he is not disabled. Tr. 29-31.


         A.Medical evidence

         Mr. Wolfsbruder argues that the ALJ improperly weighed the medical evidence by crediting the non-examining psychologists' opinions over the treating and examining source opinions, without providing specific and legitimate reason for rejecting the treating and examining doctors' opinions.[3] Dkt. 17 at 3. In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). The ALJ must give specific and legitimate reasons for rejecting a treating or examining doctor's opinion that is contradicted by another doctor, and clear and convincing reasons for rejecting a treating or examining doctor's uncontradicted opinion. Lester, 81 F.3d at 830-31.

         1.Dr. Widlan

         David Widlan, Ph.D., examined Mr. Wolfsbruder in February 2012 and opined that Mr. Wolfsbruder had marked impairments in the ability to perform routine tasks without supervision, be aware of normal hazards and take appropriate precautions, communicate and perform effectively in a work setting with even limited public contact, and maintain appropriate behavior in a work setting. Tr. 324. Dr. Widlan assigned a Global Assessment of Functioning score of 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Tr. 323; Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 34 (4th ed. text rev. 1994).

         The ALJ gave Dr. Widlan's opinion little weight because Dr. Widlan did not have access to treatment notes and relied on Mr. Wolfsbruder's presentation during their one-time interview. Tr. 29. An ALJ may give less weight to a medical opinion that 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). But an ALJ does not provide adequate 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. Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). Dr. Widlan conducted a clinical interview and administered a mental status examination. He did not merely repeat Mr. Wolfsbruder's subjective statements. Rather, he relied on his clinical assessment to opine on Mr. Wolfsbruder's limitations. And Dr. Widlan did not discredit Mr. Wolfsbruder's complaints, noting instead that Mr. Wolfsbruder scored in the non-malingering range on the Rey test for malingering. Tr. 324. This was not a valid reason to reject Dr. Widlan's opinion.

         The ALJ also found that Dr. Widlan's opinion was “inconsistent with the normal observations of the claimant, his activities, and his performance on mental status examinations.” Tr. 29. This boilerplate language, which the ALJ used to reject all the treating and examining doctors' opinions, is general, nonspecific, and does not rise to the level required to reject a treating or examining doctor. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that medical opinions are not supported by sufficient objective findings . . . does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim.”). The ALJ's repeated use of this boilerplate phrase is particularly troubling where the ALJ rejected all the treating and examining doctors' opinions and relied solely on the non-examining doctors' opinions. This rote language does not suffice to reject an examining doctor's opinion.

         Because the ALJ failed to provide a legally sufficient reason to reject Dr. Widlan's opinion, the ALJ erred in rejecting the opinion. The Court concludes that this error was prejudicial to Mr. Wolfsbruder and was therefore ...

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