United States District Court, W.D. Washington, Tacoma
ROBERT S. RYCROFT, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
Theresa L. Fricke, United States Magistrate Judge
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
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.
AND PROCEDURAL HISTORY
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.;
hearing was held before an ALJ at which plaintiff appeared
and testified as did a vocational expert. AR 42-67.
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.
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
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.
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)).
The ALJ's Evaluation of the Medical Opinion
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.
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).
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).
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
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).
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,
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.
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
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 ...