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Bray v. Berryhill

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

January 22, 2018

DAVID A. BRAY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         David 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. § 405(g)

         DISCUSSION

         Mr. 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.

         Tr. 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 appointments. Id.

         An ALJ 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).

         Dr. 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 explanation.

         The Court accordingly concludes the ALJ reasonably rejected the opinion as conclusory and unsupported by any findings.

         In 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.

         Similarly, 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 ...

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