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Wright v. Berryhill

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

September 29, 2017

EVELYN WRIGHT, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge.

         Plaintiff Evelyn Wright filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's 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.6.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) failed to provide specific, legitimate reasons supported by substantial evidence for discounting the opinions of Drs. Parker, Fuentes, Hale, Bargreen, Mitchell, and Czysz. Had the ALJ properly considered these six opinions, the residual functional capacity (“RFC”) assessment may have included additional limitations. The ALJ's error is therefore harmful, 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 June 15, 2011, Plaintiff filed applications for DIB and SSI, alleging disability as of March 21, 2011. See Dkt. 9; Administrative Record (“AR”) 183. The applications were denied on initial administrative review and reconsideration. See AR 183. A hearing was held before ALJ M. J. Adams on August 27, 2012. See AR 81-117. The ALJ found Plaintiff was not disabled. AR 183-95. Plaintiff requested review of the ALJ's decision, and the Appeals Council remanded the case to the ALJ on November 7, 2014. 202-04. A second hearing was held before the ALJ on January 26, 2016. AR 35-80. In a decision dated August 18, 2016, the ALJ determined Plaintiff to be not disabled. See AR 12-25. 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. AR 1-6; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to properly consider the medical opinions of Drs. Parker, M.D., Fuentes, M.D., Hale, M.D., Bargreen, Ph.D, Mitchell, Ph.D, Czysz, Ph.D, and Eather, Ph.D.; and (2) failing to provide clear and convincing reasons for rejecting Plaintiff's statements about the limiting effects of her condition. Dkt. 11, p. 1. Plaintiff requests the Court remand this case for an immediate award of benefits. Id. at pp. 17-18.

         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 alleges the ALJ failed to properly consider the medical opinions completed by Drs. Parker, M.D., Fuentes, M.D., Hale, M.D., Bargreen, Ph.D, Mitchell, Ph.D, Czysz, Ph.D, and Eather, Ph.D. See Dkt. 11, pp. 3-14.

         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. Bryn E. Parker, M.D.

         Plaintiff alleges the ALJ failed to provide legally sufficient reasons for rejecting the opinion of treating physician Dr. Parker. See Dkt. 11, pp. 3-6. After examining Plaintiff four times and reviewing her 2011-12 medical records, Dr. Parker opined Plaintiff can occasionally lift 20 pounds, frequently lift less than 10 pounds, stand and/or walk at least two hours in an eight-hour day, sit about six hours in an eight-hour day, and occasionally climb ramps, stairs, ladders, ropes, or scaffolds, crouch, kneel, crawl, and stoop. AR 850-51. She found Plaintiff is limited in pushing and/or pulling in her upper extremities, and limited to occasional reaching in all directions and handling. AR 851-52. She also found Plaintiff should be limited in her exposure to dust and hazards. AR 853.

         The ALJ discussed Dr. Parker's findings and then stated:

I give Dr. Parker's opinion little weight, as (1) she had only treated the claimant for a short period at the time she gave her opinion, and although she had discussed the claimant's fibromyalgia with her. (sic) Dr. Parker noted that she is not the treating physician for this condition, and as such, has not directly tested the claimant's physical endurance. (2) Additionally, Dr. Parker's push or pull limitation is inconsistent with objective medical evidence which shows that upon exam, the claimant had 5/5 strength in her upper extremities.

         AR 21 (internal citations omitted, numbering added).

         First, the ALJ gave little weight to Dr. Parker's opinion because Dr. Parker had only treated Plaintiff for a short period of time and did not treat Plaintiff's fibromyalgia. AR 21. The ALJ, however, failed to adequately explain why Dr. Parker's treating relationship warrants rejecting the opinion. It is also unclear why Dr. Parker's entire opinion should be accorded little weight simply because Dr. Parker did not “directly test” Plaintiff's physical endurance. See AR 21. Further, Dr. Parker treated Plaintiff on four occasions over a four month period, and is a treating physician. See AR 849. While Dr. Parker did not directly treat Plaintiff for fibromyalgia, she discussed how the condition impacted Plaintiff's life at three of the four appointments. AR 849; see also AR 21. The record reflects Dr. Parker also reviewed records from the University of Washington Pain Medicine Clinic, where Plaintiff was treated for fibromyalgia. AR 849. Dr. Parker's opinion was based on her clinical observations, Plaintiff's self-reporting, and a longitudinal record review, including records from the clinic which treats Plaintiff's fibromyalgia. See 849-53. As such, the ALJ's finding that Dr. Parker's opinion is entitled to little weight because she only treated Plaintiff for a short period of time and did not treat Plaintiff for fibromyalgia are not specific and legitimate reasons supported by substantial evidence.

         Second, the ALJ gave little weight to Dr. Parker's opinion because her opinion that Plaintiff was limited in pushing and pulling in her upper extremities was inconsistent with the record. AR 21. The record shows Plaintiff had “5/5 strength in the bilateral upper and lower extremities” during a December 2011 exam. AR 767. Plaintiff appears to concede the ALJ's reason for discounting Dr. Parker's push and pull limitations is valid. Dkt. 11, pp. 5-6. However, she argues the ALJ did not provide adequate reasons for rejecting the remaining limitations opined to by Dr. Parker. Id. The Court agrees. As discussed above, the ALJ's first reason for discounting Dr. Parker's entire opinion is not valid. Additionally, while the ALJ has provided a reason for discounting Dr. Parker's push and pull limitation, the AJL has provided no other reasons for discounting the rest of her opinion. Thus, the Court finds the ALJ has not provided specific, legitimate reasons supported by substantial evidence for discounting Dr. Parker's entire opinion.

         For the above stated reasons, the Court finds the ALJ erred when he gave little weight to Dr. Parker's opinion. “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the claimant or “inconsequential” to the ALJ's “ultimate nondisability determination.” Stout v. Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. The determination as to whether an error is harmless requires a “case-specific application of judgment” by the reviewing court, based on an examination of the record made “‘without regard to errors' that do not affect the parties' ‘substantial rights.'” Molina, 674 F.3d at 1118-19 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)).

         Had the ALJ properly considered Dr. Parker's opinion, he may have included additional limitations in the RFC and in the hypothetical question posed to the vocational expert (“VE”), Paul Prachyl. See AR 18, 73-75. For example, Dr. Parker opined that Plaintiff's ability to reach and handle is limited to an occasional basis. See AR 851-52. The RFC did not contain this limitation. AR 18. If the limitations found by Dr. Parker were included in the RFC and in the hypothetical question ...


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