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Donohue v. Berryhill

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

November 8, 2017

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



         Plaintiff Michelle L. Donohue filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's application for supplemental security income (“SSI”). 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. 8.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when she failed to provide specific and legitimate reasons, supported by substantial evidence, for giving limited weight to the medical opinion evidence. Had the ALJ properly considered the medical opinion evidence, 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.


         On September 10, 2013, Plaintiff filed an application for SSI, alleging disability as of March 1, 2001. See Dkt. 11, Administrative Record (“AR”) 25.[1] The application was denied upon initial administrative review and on reconsideration. See AR 25. A hearing was held before ALJ Cynthia D. Rosa on August 12, 2015. AR 46-84.

         In a decision dated January 21, 2016, the ALJ determined Plaintiff to be not disabled. AR 25-40. 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 1-4; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to provide specific and legitimate reasons to reject the opinions of three examining physicians: Dr. Jennifer Koch, Psy.D., Dr. Terilee Wingate, Ph.D., and Dr. Janis Lewis, Ph.D.; (2) failing to provide germane reasons to reject lay witness testimony; (3) failing to provide clear and convincing reasons to reject Plaintiff's subjective symptom testimony; and (4) improperly assessing Plaintiff's RFC, the hypothetical questions posed to the vocational expert, and the subsequent Step Five findings. Dkt. 13, pp. 1, 4-17.


         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)).


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

         Plaintiff first argues the ALJ failed to provide specific and legitimate reasons, supported by substantial evidence, to reject evidence from three examining physicians. Dkt. 13, pp. 1, 4-14.

         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 Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 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 [her] 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)).

         A. Dr. Koch

         Plaintiff maintains the ALJ erred when she gave little weight to Dr. Koch's opinion. Dkt. 13, pp. 4-7.

         Dr. Koch conducted a psychological and psychiatric evaluation of Plaintiff on September 12, 2013. AR 401-06. Dr. Koch's evaluation included a record review, clinical interview, and mental status exam. AR 401-06. Dr. Koch opined Plaintiff had moderate and marked limitations in several areas of basic work activities. AR 404. For example, Dr. Koch found Plaintiff moderately impaired in her ability to learn new tasks, adapt to changes in a routine work setting, maintain appropriate behavior in a work setting, and set realistic goals and plan independently. AR 404. Furthermore, Dr. Koch opined Plaintiff had marked limitations in her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances without special supervision. AR 404. Dr. Koch also found Plaintiff markedly limited in her ability to communicate and perform effectively in a work setting and complete a normal work day and work week without interruptions from psychologically based symptoms. AR 404.

         The ALJ summarized Dr. Koch's findings, and then stated:

Although most of the limitations assessed by Dr. Koch are addressed in the RFC, little weight is given to her opinion of marked limitations. The claimant's presentation and her report of symptoms to Dr. Koch were quite extreme when compared to the record just prior to Dr. Koch's evaluation and shortly after her evaluation. For example, on May 30, 2013, the claimant presented to St. Peter Hospital again for a refill of her medication. She reported she had run out of her medication two days earlier. She reported she was feeling a little anxious. Her mood and affect were normal. She was interactive. She had no flight of ideas or suicidal or homicidal thoughts (Ex 5F). At an appointment at Sea Mar on September 19, 2013, the claimant denied feeling depressed in the previous two weeks. Her mood and affect were appropriate (Ex 8F/12).

AR 35-36.

         The ALJ's sole reason for giving little weight to Dr. Koch's opinion was because she found it “quite extreme” compared to contemporaneous treatment records. AR 35-36. An ALJ can discount a medical opinion if it is inconsistent with contemporaneous treatment records. Parent v. Astrue, 521 Fed.Appx. 604, 608 (9th Cir. 2013) (citing Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 20008)). Nonetheless, an ALJ cannot ...

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