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Rycroft v. Berryhill

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

December 1, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Theresa L. Fricke, United States Magistrate Judge

         Plaintiff has brought this matter for judicial review of defendant's denial of his application for disability insurance benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13.

         For the reasons set forth below, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to provide specific, clear, and convincing reasons for finding plaintiff's subjective symptom testimony was not fully supported. The ALJ's error is therefore harmful. The Court finds that defendant's decision to deny benefits should be reversed, and that this matter should be remanded for further administrative proceedings.


         On September 11, 2013, plaintiff filed an application for disability insurance benefits alleging that he became disabled beginning September 8, 2010. Dkt. 8, Administrative Record (AR) 182-192. Mr. Rycroft had craniotomy surgery for bleeding on his brain in September of 2010, and later had heart surgery in April of 2011, to repair an aortic valve, aortic root, and ascending thoracic aorta. AR 330-332, 368-372, 445-447, 450-456, 567-568. His Social Security benefits application was denied on initial administrative review. Id. at 232. At the time he applied for benefits, Mr. Rycroft was living in Michigan; Michigan does not have a reconsideration level of review. See id.; A hearing was held before an ALJ at which plaintiff appeared and testified as did a vocational expert. AR 42-67.

         In a written decision dated April 21, 2015, the ALJ documented his analysis at each of the five steps. AR 25-41. Steps one, two and three were resolved in plaintiff's favor; the ALJ considered plaintiff's residual functional capacity and found at step four that plaintiff could not perform his past relevant work (AR 35); but the ALJ found at step five that Mr. Rycroft could perform jobs that exist in significant numbers in the national economy (AR 36-37) and therefore, he was not disabled. AR 25-41. Plaintiff's request for review was denied by the Appeals Council on July 14, 2016, making the ALJ's decision the final decision of the Commissioner, which plaintiff then appealed in a complaint filed with this Court on April 26, 2017. AR 9; Dkt. 1; 20 C.F.R. § 404.981.

         Plaintiff seeks reversal of the ALJ's decision and remand for an award of benefits, arguing the ALJ erred: (1) in evaluating the medical opinion evidence from Geoffrey Trivax, M.D., Jack Belen, M.D., and Donald Kuiper, M.D.; and (2) in discounting plaintiff's credibility. For the reasons set forth below, the Court finds that the ALJ erred in certain respects concerning the medical evidence, and also erred in discounting plaintiff's credibility. The Court also finds that there is ambiguity in the record concerning Mr. Rycroft's medical situation and disability status for a 12-month period between the date of onset and the ALJ's decision; therefore the decision to deny benefits should be reversed and that this matter should be remanded for further administrative proceedings.


         The Commissioner's determination that a claimant is not disabled must be upheld if the “proper legal standards” have been applied, and the “substantial evidence in the record as a whole supports” that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991). “A decision supported by substantial evidence nevertheless will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.” Carr, 772 F.Supp. at 525 (citing Brawner v. Sec'y of Health and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 1193.

         The Commissioner's findings will be upheld “if supported by inferences reasonably drawn from the record.” Batson, 359 F.3d at 1193. Substantial evidence requires the Court to determine whether the Commissioner's determination is “supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required.” Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence admits of more than one rational interpretation, ” that decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That is, “[w]here there is conflicting evidence sufficient to support either outcome, ” the Court “must affirm the decision actually made.” Allen, 749 F.2d at 579 (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).

         I. The ALJ's Evaluation of the Medical Opinion Evidence

         Plaintiff asserts the ALJ failed to properly consider the opinion evidence submitted by treating physician Dr. Trivax, examining physician Dr. Belen, and non-examining physician Dr. Kuiper. Dkt. 10 at 4-5. He argues that Dr. Trivax's opinion should have been given greater weight by the ALJ, specifically that the ALJ overlooked Dr. Trivax's opinion that the plaintiff was only capable of light work due to medical evidence of fatigue.

         Medical opinions provided by professionals in Social Security cases often may be categorized into three groups: “(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians).” Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the plaintiff, and an examining physician's opinion is generally entitled to more weight than that of a non-examining physician. Id. A non-examining physician's opinion may constitute substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 830-31; Tonapetyan, 242 F.3d at 1149. An ALJ need not accept the opinion of a treating physician, “if that opinion is brief, conclusory, and inadequately supported by clinical findings” or “by the record as a whole.” Batson, 359 F.3d at 1195; see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

         Even when a treating or examining physician's opinion is contradicted, an ALJ may only reject that opinion “by providing specific and legitimate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). However, the ALJ “need not discuss all evidence presented” to him or her. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original). The ALJ must only explain why “significant probative evidence has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984).

         “[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.1996)). As the Ninth Circuit has stated:

To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.

Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (internal footnote omitted).

         a. Dr. Trivax

         Plaintiff contends the ALJ erred by failing to properly consider treating physician Dr. Trivax's opinion that plaintiff could perform light work. Dkt. 10 at 4. Dr. Trivax was plaintiff's primary care provider; he examined plaintiff in 2012 and 2013, following plaintiff's aortic valve replacement. AR 416-570. On October 17, 2012, Dr. Trivax submitted a letter opining plaintiff: “had a hemorrhagic stroke and heart attack in September 2010. He continues to have difficulties with mentation and physical weakness. He is permanently disabled.” AR 545. The record contains objective medical evidence concerning fatigue, leading up to Dr. Trivax' opinion in October 2012. The evidence shows that at some of his medical appointments during 2010-2012 with Dr. Trivax, Dr. Deeb, Dr. Haft, Dr. Zughaib, and in a Social Work Psychosocial Assessment in November of 2010, there are notations concerning fatigue - sometimes noted in earlier date ranges as severe, at times described as mild, and in later date ranges during 2011 and 2012, described as having been resolved. AR 305-306, 321, 328, 363-364, 369-372, 388, 392-394, 396-398, 404, 440, 455-456. Regarding plaintiff's functional limitations, on March 21, 2013, [1] Dr. Trivax opined that Mr. Rycroft was prevented from working due to symptoms from aortic valve surgery, and because of fatigue he was limited to “[n]o lifting greater than 40 lbs.” AR 531. Dr. Trivax also checked the box indicating that plaintiff had “slight limitation” in functions. AR 531. Dr. Trivax opined plaintiff could do “light work, ” defined as “lift[ing] a maximum of 25 lbs. with frequent lifting and/or carrying of objects at least 10 lbs.” Id.

         The ALJ discussed Dr. Trivax's 2012 and 2013 opinions and afforded some weight to the 2013 opinion, and less weight to the 2012 opinion. AR. 34. With respect to Dr. Trivax's 2012 opinion that plaintiff was “permanently disabled, ” the ALJ found that this opinion was contravened by the treatment record from March 21, 2013, that plaintiff could do light work and lift up to 40 pounds, as well as a clinic note from June 2012, that plaintiff's echocardiogram was negative and that plaintiff was “doing well from the cardiorespiratory point of view.” Id.

         The Court finds that the ALJ properly questioned Dr. Trivax's October 2012 opinion that plaintiff was “permanently disabled, ” by noting it was contradicted by Dr. Trivax's June 2012 opinion that plaintiff was doing well, and his later 2013 opinion that plaintiff could do light work. See AR 34. An ALJ need not accept the opinion of a treating physician if it is inadequately supported by the record as a whole. Batson, 359 F.3d at 1195. Determining whether inconsistencies in the medical evidence “are material (or are in fact inconsistencies at all) and whether certain factors are relevant to ...

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