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Schwitzke v. Berryhill

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

September 8, 2017

MICHAEL LEE SCHWITZKE JR, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING THE COMMISSIONER'S DECISION TO DENY BENEFITS

          David W. Christel, United States Magistrate Judge.

         Plaintiff Michael Lee Schwitzke, Jr. filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of his applications 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. 5.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to discuss significant and probative evidence contained in Dr. Christmas Covell's opinion. Further, the ALJ failed to provide specific, legitimate reasons supported by substantial evidence for giving less weight to the opinions of Drs. Charles Quinci and Randy Hurst. Had the ALJ properly considered the opinions of these three doctors, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On August 15, 2012, Plaintiff filed applications for SSI and DIB, alleging disability as of February 10, 2012. See Dkt. 10, Administrative Record (“AR”) 19. The applications were denied upon initial administrative review and on reconsideration. See Id. A hearing was held before ALJ Riley J. Atkins on September 8, 2014. See AR 46-77. The ALJ held a supplemental hearing on March 30, 2015. AR 78-99. In a decision dated April 15, 2015, the ALJ determined Plaintiff to be not disabled. See AR 19-38. 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 1-3; 20 C.F.R. § 404.981, § 416.1481.

         In the Opening Brief, Plaintiff maintains the ALJ failed to: (1) include all limitations opined to by Dr. Christmas Covell; (2) properly consider the opinions of Drs. Charles Quinci and Randy Hurst; (3) properly reject the lay witness evidence; and (4) properly reject Plaintiff's subjective symptom testimony. Dkt. 15, pp. 1-2. Plaintiff asks the Court to remand for award of benefits.

         STANDARD OF REVIEW

         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)).

         DISCUSSION

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

         Plaintiff contends the ALJ erred in her evaluation of the opinion evidence submitted by Drs. Covell, Quinci, and Hurst. Dkt. 15, pp. 3-13.

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. 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)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 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 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

         The ALJ “may reject the opinion of a non-examining physician by reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996)); Andrews, 53 F.3d at 1041). However, all of the determinative findings by the ALJ must be supported by substantial evidence. See Bayliss, 427 F.3d at 1214 n.1 (citing Tidwell, 161 F.3d at 601); see also Magallanes, 881 F.2d at 750 (“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”).

         A. Dr. Covell

         Plaintiff maintains the ALJ erred when he failed to include in the RFC assessment all limitations assessed by consulting psychologist Dr. Christmas Covell, Ph.D. Dkt. 15, pp. 3-5. Specifically, Plaintiff asserts the ALJ gave moderate weight to Dr. Covell's opinion and included many of the opined limitations in the RFC, but did not include Dr. Covell's finding that Plaintiff would have occasional lapses in concentration, persistence, and pace in the RFC and did not provide specific and legitimate reasons supported by substantial evidence for discounting this limitation. See id.

         The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 739 F.3d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative evidence' without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent, 739 F.2d at 1395). The “ALJ's written decision must state reasons for disregarding [such] evidence.” Flores, 49 F.3d at 571.

         Dr. Covell completed a Mental RFC assessment as a portion of the Disability Determination Explanation. AR 130-47. Dr. Covell opined Plaintiff is able to understand and remember simple instructions and well-learned semi-detailed tasks, carry out simple, routine tasks and well-learned semi-complex tasks that are not fast-paced, and adjust to routine workplace changes and carry out goals set by others. AR 142-43. She found Plaintiff functions best in smaller group settings with superficial public interaction and has the ability to maintain cooperative interactions with supervisors and coworkers. AR 143. Dr. Covell also opined Plaintiff will have occasional lapses in concentration, persistence, and pace due to his anxiety, difficulty with concentration under pressure, and slowed processing, “through should be able to remain within tolerable levels.” AR 142.

         The ALJ gave moderate weight to Dr. Covell's opinion, determining Plaintiff's interactions with coworkers and supervisors should be further limited. AR 32. In his decision, the ALJ did not include a discussion regarding Dr. Covell's opinion as to Plaintiff's occasional lapses in concentration, persistence, and pace due to anxiety, difficulty with concentration under pressure, and slowed processing. See AR 32. Further, the ALJ did not include a limitation in the RFC specific to Dr. Covell's opinion that Plaintiff will have occasional lapses in concentration, persistence, and pace. See AR 25. The RFC states, in relevant part, Plaintiff “can maintain concentration, persistence or pace for routine repetitive work, and occasionally more complex work, but would not likely be able to sustain concentration for complex work.” AR 25.

         Plaintiff's lapses in concentration, persistence, and pace are related to his ability to be employed and is therefore significant, probative evidence. While the ALJ accounted for some limitations in Plaintiff's concentration, persistence, and pace, he does not explain if he considered Dr. Covell's opinion that Plaintiff will have lapses in concentration persistence and pace. See AR 25, 32. Additionally, the RFC does not expressly contain a limitation concerning lapses in Plaintiff's concentration, persistence, and pace. See AR 25, 32. The Court notes, when discussing Plaintiff's limitations, Dr. Covell's opinion states Plaintiff should be able “to remain within tolerable limits”. AR 142. It, however, is unclear if Dr. Covell is discussing Plaintiff's lapses in concentration, persistence, and pace or if Dr. Covell found Plaintiff would remain within tolerable limits despite his difficulty concentrating under pressure and his slowed processing. ...


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