United States District Court, W.D. Washington, Tacoma
MICHELLE L. DONOHUE, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE.
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.
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.
AND PROCEDURAL HISTORY
September 10, 2013, Plaintiff filed an application for SSI,
alleging disability as of March 1, 2001. See Dkt.
11, Administrative Record (“AR”)
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.
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.
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.
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 weighed the medical opinion
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.
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)).
maintains the ALJ erred when she gave little weight to Dr.
Koch's opinion. Dkt. 13, pp. 4-7.
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.
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).
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 ...