United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE.
Gizachwe Yirgu seeks review of denial of his Supplemental
Security Income (“SSI”) application. He contends
the Administrative Law Judge (“ALJ”) erred in
evaluating the opinions of treating psychiatrist, David
Rowlett, M.D., examining psychologist Wayne Dees, Psy.D., and
reviewing psychologist John Gilbert, Ph.D. He further
contends that remand for further proceedings is necessary to
consider new evidence submitted to the Appeals Council which
undermines the ALJ's mental residual functional capacity
assessment. Dkt. 11. As discussed below, the Court recommends
the case be REVERSED and
REMANDED for further administrative
proceedings under sentence four of 42 U.S.C. § 405(g).
Yirgu is 43 years old, completed the 11th grade,
is able to read and write English “okay”, and has
never had a driver's license. Tr. 59-60. Mr. Yirgu grew
up in Ethiopia and Kenya during various civil wars and came
to the United States when he was 14 or 15 and has been
diagnosed with PTSD as a result. Tr. 56-57. He has worked as
a metal sheet cutter, a seafood processor, and busboy. Tr.
Yirgu filed his application for SSI disability benefits on
April 2, 2014, alleging disability beginning January 1, 2008.
Tr. 12. At the hearing, he amended his alleged onset date of
April 2, 2014, the filing date of his application on the
grounds that he cannot receive SSI benefits before that date.
Tr. 55. On December 31, 2013, ALJ Gordon Griggs issued a
decision finding Mr. Yirgu not disabled. Tr. 12-30. Mr. Yirgu
requested review, which was denied by the Appeals Council on
February 17, 2017. Tr. 1-5.
the five-step disability evaluation process,  the ALJ found Mr.
Yirgu's severe impairments included “alcohol
dependence, cocaine dependence; depressive disorder;
post-traumatic stress disorder; chronic obstructive pulmonary
disease; sleep apnea; status post left leg degloving injury
with skin grafting infections, and edema; and post-traumatic
arthritis of the left wrist.” Tr. 14. The ALJ found
when his substance use was considered in combination with his
other impairments, Mr. Yirgu was disabled because he had
marked difficulties with social functioning and
concentration, persistence, or pace but without consideration
of substance use, Mr. Yirgu would have only mild difficulties
in these same areas. Tr. 16, 19-20. The ALJ concluded Mr.
Yirgu's substance use is a “contributing factor
material to the determination of disability” because
absent the substance use, Mr. Yirgu would not be disabled.
found further that absent consideration of substance use, Mr.
Yirgu had the residual functional capacity (RFC) to perform
sedentary work as defined in 20 C.F.R. 416.967(a), except
that he can never climb ladders, ropes or scaffolds, but can
frequently climb ramps and stairs, and is further limited to
frequent kneeling, crouching, crawling, handling, and
fingering. Additional limitations include occasional exposure
to extreme cold, vibration, and pulmonary irritants, such as
dust, fumes, odors, gases, and poor ventilation. Finally, the
ALJ found that even if Mr. Yirgu stopped the substance abuse,
he would be limited to tasks that can be learned in 30 days
or less, that involve no more than simple, work-related
decisions and few workplace changes. Tr. 20-21.
these limitations, the ALJ found Mr. Yirgu was unable to
perform his past relevant work, Tr. 28, but that considering
his age (41-43) and education (limited); he was able to
perform sedentary, unskilled work, including: (1) call-out
operator (of which there are approximately 258, 000 jobs
nationally and 1, 062 in Washington); (2) charge account
clerk (of which there are approximately 200, 150 such jobs
nationally and 4, 220 in Washington state); and, (3) table
worker, of which there are approximately 100, 300 such jobs
nationally and 6, 970 in Washington state). The ALJ found
that these jobs existed in significant numbers in the
national economy. Tr. 29.
The ALJ Failed to Properly Consider Medical Opinions in
Determining Plaintiff's Residual Functional
should generally give more weight to the opinion of a
treating doctor than to that of a non-treating doctor, and
more weight to the opinion of an examining doctor than to
that of a non-examining doctor. 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. Id.
at 830-31. Mr. Yirgu argues that although the ALJ considered
the opinions of treating psychiatrist David Rowlett, M.D.,
examining psychologist Wayne Dees, Psy.D., and reviewing
psychologist John Gilbert, Ph.D., all of which were not
contradicted, the ALJ failed to give clear and convincing
reasons for rejecting them.
David Rowlett, M.D.
Rowlett is Mr. Yirgu's treating psychiatrist at Community
Psychiatric Clinic. Mr. Yirgu has been a psychiatric patient
at the clinic since 2008 and has been treated for major
depressive disorder, PTSD, and alcohol and cocaine addiction.
The record contains monthly treatment notes from Dr. Rowlett
beginning in February 2014. Tr. 586.
September 2015 report, Dr. Rowlett opined Mr. Yirgu could not
perform the following work functions on a regular, reliable
or sustained basis: (1) understand, remember and carry out
detailed instructions; and (2) accept instructions and
respond appropriately to criticism from supervisors. Tr.
715-16. He further opined Mr. Yirgu could perform the
following tasks or functions, but would have noticeable
difficulty (i.e., be unproductive and distracted
from job activity) more than 20 percent of the work day or
work week (i.e., more than one hour and up to two
hours per day or one-half to one day per week) in:
remembering locations and work-like procedures; understanding
and remembering very short, simple instructions; maintaining
attention and concentration for extended periods of time;
performing activities within a schedule, maintain regular
attendance, and/or being punctual within customary
tolerances; working in coordination with or proximity to
others without being distracted by them; completing a normal
workday and workweek without interruptions from psychological
based symptoms and performing at a consistent pace without an
unreasonable number and length of rest periods; getting along
with coworkers or peers without distracting them or