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Phillips v. Berryhill

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

January 26, 2018

BRIAN C. PHILLIPS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S COMPLAINT

          J. Richard Creatura, United States Magistrate Judge.

         This 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.

         Plaintiff 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 summary:

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 independent living.

         AR. 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.

         After 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.

         Therefore, this matter is reversed and remanded for further administrative proceedings consistent with this Order.

         BACKGROUND

         Plaintiff, 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.

         According 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.

         At the time of the hearing, plaintiff was living half the time with his dad and half the time with his mom. AR. 48.

         PROCEDURAL HISTORY

         Plaintiff's 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.

         In 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.

         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

         (1) Whether the ALJ provided legally sufficient reasons to reject Dr. Yoder's October 2014 Clinical Progress (SOAP) Notes and Opinion.

         Plaintiff 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.

         When an 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).

         Dr. 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.

         Dr. 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, ...


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