United States District Court, W.D. Washington, Seattle
DAVID A. BRAY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING FOR FURTHER
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
A. Bray appeals the ALJ's decision finding him not
disabled. Dkt. 1. He contends the ALJ erroneously rejected
several limitations assessed by examining doctor Anselm
Parlatore, M.D., and that the Court should remand the case
for further administrative proceedings. Dkt. 10. The Court
agrees the ALJ harmfully erred, and REVERSES
the Commissioner's final decision and
REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
Bray contends the ALJ harmfully erred in failing to account
for all limitations assessed by examining doctor Anselm
Parlatore, M.D. Dr. Parlatore opined:
His social interaction and adaptation are markedly affected
by his physical symptoms. He cannot perform activities within
a schedule or maintain regular attendance or be punctual to a
severe degree. He cannot communicate an[d] perform
effectively in a work setting nor complete a normal workday
or workweek without interruptions from his symptoms to a
severe degree and he cannot maintain appropriate behavior in
a work setting to a marked degree.
540. The ALJ gave these opinions “little weight,
” Tr. 33, and determined Mr. Bray had no mental or
psychological limitations other than being limited to
“simple, routine tasks.” Tr. 29. The ALJ rejected
Dr. Parlatore's opinion Mr. Bray cannot perform
activities within a schedule or maintain regular attendance
on the grounds “there are no findings in Dr.
Parlatore's report to support this assertion, ” the
claimant did not report difficulties with following a
schedule, and treatment records show Mr. Bray keeps his many
may discount an opinion that is “‘conclusory,
brief, and unsupported by the record as a whole or by
objective medical findings.'” Burrell v.
Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (quoting
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d
1190, 1195 (9th Cir. 2004)). However, even where an opinion
is conclusory or brief, an ALJ may not reject that opinion if
it is supported by the record and objective medical findings.
Id. (Although doctor's opinion was in
“check-box” form and contained almost no detail
or explanation, the ALJ erred in discounting the opinion
where the doctor's own treatment notes and the
claimant's testimony supported that opinion).
Parlatore's opinion is conclusory, brief, and
unsupported, i.e. he provides no discussion or findings to
support his opinions. Although he diagnosed Mr. Bray with
reactive situational depression and sleep apnea, noted he had
problems ambulating, was short of breath, and his mood was
one of worry and sadness and his affect was constrictive, Tr.
539, he provides no explanation connecting these findings to
his conclusion that Mr. Bray cannot perform activities within
a schedule or maintain regular attendance. The Court cannot
say Dr. Parlatore's observations and diagnoses, on their
face, establish these limitations without further
Court accordingly concludes the ALJ reasonably rejected the
opinion as conclusory and unsupported by any findings.
addition, the Court cannot rely upon other portions of the
record to sustain Dr. Parlatore's opinion. Dr. Parlatore
never treated Mr. Bray and has no “treatment
notes” to support his opinion. Mr. Bray was seen by
other medical providers but their records focus almost
exclusively on his physical problems. In places, the medical
record indicates Mr. Bray was screened as
“negative” for depressive symptoms, e.g.
Tr. 359, 362, 366, 369; in other places, the record notes Mr.
Bray has depression, e.g. Tr. 674 or moderate
depression. Tr. 665. But the medical record does not contain
any opinions that support Dr. Parlatore's opinion that
Mr. Bray cannot perform activities within a schedule or
maintain regular attendance.
Mr. Bray's testimony does not support Dr. Parlatore's
opinion. Mr. Bray wrote the ALJ a letter stating “I am
filing for disability mostly because of the chronic pain
which I must deal with on a daily basis in my knees back and
elbow and left hip.” Tr. 335. At the hearing conducted
by the ALJ, Mr. Bray gave the following testimony:
ALJ: “Are you on any mental health medications?”
Mr. Bray: “Just the antidepressant stuff I told you