United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING THE COMMISSIONER'S
DECISION TO DENY BENEFITS
W. Christel, United States Magistrate Judge.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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 considered the medical opinion
contends the ALJ erred in her evaluation of the opinion
evidence submitted by Drs. Covell, Quinci, and Hurst. Dkt.
15, pp. 3-13.
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)).
“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
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
“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.
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.
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.
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. ...