United States District Court, W.D. Washington, Tacoma
BRIAN C. PHILLIPS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER ON PLAINTIFF'S COMPLAINT
Richard Creatura, United States Magistrate Judge.
Court has jurisdiction pursuant to 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13
(see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed
Before a United States Magistrate Judge, Dkt. 8). This matter
has been fully briefed. See Dkt. 15, 19, 20.
has traumatic brain injuries from playing tackle football,
evidenced by an MRI demonstrating a frontal lobe lesion. A
clinical neuropsychologist who conducted extremely extensive
testing and examination of plaintiff included the following
Consistent with his neurological findings, [plaintiff]
demonstrates a pattern of deficits often associated with the
right frontal brain lesion. The highly significant
discrepancy between verbal and nonverbal abilities is
strongly associated with right hemisphere lateralization, and
the particular weakness in spatial organization, phonemic
verbal fluency, and reading efficiency suggests a more
frontal involvement. Perhaps even more significant is
[plaintiff's] described behavioral passivity. Although he
appears to respond well to structured prompts for a given
behavior, he does not usually initiate these on his own. This
is a serious deficit in adaptive behavioral functioning,
which has a major impact upon his capacity to resume fully
414. The examining neuropsychologist also concluded that if
plaintiff did not receive effective rehabilitation, he would
be “unlikely to demonstrate the pace or persistence for
any form of competitive employment or academic achievement,
and may become permanently disabled.” AR. 415. The ALJ
rejected this opinion, and also failed to discuss the opinion
from an examining neurologist who opined that plaintiff
should be enrolled as disabled. AR. 30, 462.
considering and reviewing the record, the Court concludes
that the ALJ erred when evaluating the medical evidence. For
example, the ALJ failed to discuss the only opinion from the
neurologist, Dr. Yoder, provided during the relevant assessed
period of time. As Dr. Yoder agreed that plaintiff should be
“enrolled as disabled, ” the failure to
acknowledge this opinion is not harmless error.
this matter is reversed and remanded for further
administrative proceedings consistent with this Order.
BRIAN C. PHILLIPS, was born in 1993 and was 18 years old on
the alleged date of disability onset of September 12, 2012.
See AR. 166-75. Plaintiff graduated from high school
and started college, but dropped out when it became difficult
to concentrate. AR. 42-43. He has some work history as a
cashier/attendant in a gym, construction laborer, changing
oil in vehicles and sheet metal fabricator. AR. 205-16.
Plaintiff was fired from his last job for being angry and
disrespectful and for being a no call/no show though he
thought he'd been given the day off. AR. 54.
to the ALJ, plaintiff has at least the severe impairments of
“cognitive disorder status-post traumatic brain
injuries, mood disorder, and headaches (20 CFR
416.920(c)).” AR. 22.
time of the hearing, plaintiff was living half the time with
his dad and half the time with his mom. AR. 48.
application for Supplemental Security Income
(“SSI”) benefits pursuant to 42 U.S.C. §
1382(a) (Title XVI) of the Social Security Act was denied
initially and following reconsideration. See AR.
77-86, 88-98. Plaintiff's requested hearing was held
before Administrative Law Judge Joanne E. Dantonio
(“the ALJ”) on May 29, 2015. See AR.
38-75. On September 21, 2015, the ALJ issued a written
decision concluding that plaintiff was not disabled pursuant
to the Social Security Act. See AR. 17-37.
plaintiff's Opening Brief, plaintiff raises the following
issues: (1) Whether the ALJ provided legally sufficient
reasons to reject Dr. Yoder's October 2014 Clinical
Progress (SOAP) Notes and Opinion; (2) Whether the ALJ
provided legally sufficient reasons to reject Dr.
Powell's opinion; (3) Whether the ALJ provided legally
sufficient reasons to reject plaintiff's subjective
claims; (4) Whether the ALJ provided legally sufficient
reasons to reject the lay testimony; and (5) Whether in light
of these errors, the RFC, hypothetical questions, and steps
four and five findings remain supported by substantial
evidence. See Dkt. 15, p. 1.
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
Whether the ALJ provided legally sufficient reasons
to reject Dr. Yoder's October 2014 Clinical Progress
(SOAP) Notes and Opinion.
contends that the ALJ erred when failing to credit fully the
medical opinion of neurologist, Dr. Carl Yoder, M.D. Although
the ALJ rejected Dr. Yoder's earlier opinions issued
prior to the period of time relevant to the disability
analysis (August 16, 2013, the application date), the ALJ did
not provide any rationale to reject Dr. Yoder's SOAP
notes, and failed to note his opinion that plaintiff was
disabled, which were provided on October 6, 2014. Defendant
contends that the ALJ actually cited the relevant treatment
record, and cites to some of plaintiff's reports and to
the diagnosis noted within the ALJ's written decision.
See Dkt. 19, pp. 3-5.
opinion from an examining or treating doctor is contradicted
by other medical opinions, the treating or examining
doctor's opinion can be rejected only “for specific
and legitimate reasons that are supported by substantial
evidence in the record.” Lester v. Chater, 81
F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v.
Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray
v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); see
also 20 C.F.R. §§ 404.1527(a)(2).
Carl Yoder, M.D. examined plaintiff on more than one occasion
and also appears to have been involved in recommending a
referral for further care and helping to ensure that
plaintiff received such care. See AR. 458-60.
Therefore, Dr. Yoder likely qualifies as a treating
physician; however, based on the Court's review of the
record, the Court is not applying a higher standard to the
ALJ's rejection of Dr. Yoder's opinion, as the Court
concludes that she erred even with a lower standard.
Yoder examined plaintiff on October 6, 2014, after
plaintiff's August 16, 2013 application date.
See AR. 20, 461. Dr. Yoder observed that plaintiff
had a flat affect, and also observed following neurological
examination that plaintiff demonstrated a “decreasing
concentrating ability.” AR. 461. Although plaintiff
“was able to say the months of the year in reverse ,
he was very slow in the process.” Id. Dr.
Yoder observed that plaintiff was not oriented as to time,