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Bowes v. Berryhill

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

December 15, 2017

SHARON FRANCES IRENE BOWES, 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 Sharon Frances Irene Bowes filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her 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. 8.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to properly consider the opinions of Dr. Erum Khaleeq, Ms. Deborah Metzler, and Ms. Teresa Garrison. Had the ALJ properly considered these three opinions, the RFC may have included additional limitations. The ALJ's errors are 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 September 9, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as of October 1, 2011. See Dkt. 11, Administrative Record (“AR”) 21. The applications were denied on initial administrative review and reconsideration. See AR 21. A hearing was held before ALJ Robert P. Kingsley on October 14, 2015. See AR 41-80. In a decision dated December 1, 2015, the ALJ determined Plaintiff was not disabled. AR 21-34. 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 1-5; 20 C.F.R. § 404.981, § 416.1481.

         In the Opening Brief, Plaintiff maintains the ALJ erred by failing to provide sufficient reasons to reject: (1) the medical opinion evidence of Dr. Erum Khaleeq, M.D., Deborah Metzler, M.H.P., L.M.H.C., and Teresa Garrison, A.R.N.P.; (2) college professor Richard Weiss's opinion, and (3) Plaintiff's subjective symptom testimony. Dkt. 15, p. 1. Plaintiff contends that, given these errors, the ALJ's RFC finding, hypothetical questions, and Step Five determinations were not supported by substantial evidence. Id.

         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 opinion evidence of Dr. Khaleeq, Ms. Metzler, and Ms. Garrison. Dkt. 15, pp. 4-13.

         A. Acceptable Medical Source

         First, Plaintiff contends the ALJ failed to properly weigh examining psychiatrist Dr. Khaleeq's opinion. Dkt. 15, pp. 4-8. 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)).

         On March 15, 2014, Dr. Khaleeq examined Plaintiff and diagnosed her with post-traumatic stress disorder (“PTSD”) and chronic pain. AR 485-88. Dr. Khaleeq opined that Plaintiff could perform simple and repetitive tasks, but may be distracted with detailed and complex tasks. AR 488. He found Plaintiff could accept instructions from supervisors, coworkers, and the public, as long as her pain allowed. AR 488. Dr. Khaleeq also determined Plaintiff could perform work activities on a consistent basis, although it may take her longer to complete a normal workday and workweek, and the usual stress encountered in the workplace may further aggravate her psychiatric condition. AR 488.

         The ALJ discussed Dr. Khaleeq's objective findings and his opinion regarding Plaintiff's functional limitations. AR 30. The ALJ then stated:

Partial weight is assigned to this evaluation. The mental status examination and the record support the assessment that the claimant could perform at least simple, repetitive tasks and socialize with others at work. However, (1) Dr. Khaleeq's assessment that it could take the claimant longer than normal to complete a workday/week and that stress could aggravate her condition is based on subjective complaints and lacks any objective basis, as the claimant persisted during the entire evaluation and she performed fairly well on the mental status examination. I find the assessment about the claimant's pain entirely subjective and beyond a psychological assessment. (2) I note despite reporting to Dr. Wiggins just a few days earlier that she was studying computers, she reported that her injuries were to the point that she was unable to work or attend school.

         AR 30 (internal citations omitted, numbering added).

         First, the ALJ gave partial weight to Dr. Khaleeq's assessment that it would take Plaintiff longer than normal to complete a workday/workweek and stress may aggravate her condition because the opinion was based on subjective complaints and lacked any objective basis. AR 30. The ALJ also found Dr. Khaleeq's opinion regarding Plaintiff's pain was entirely subjective and beyond a psychological assessment. AR ...


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