United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge.
Oral Lish has brought this matter for judicial review of
defendant's denial of his applications for disability
insurance and supplemental security income (SSI) benefits.
This matter has been referred to the undersigned Magistrate
Judge. Mathews, Sec'y of H.E.W. v. Weber, 423
U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule
MJR 4(a)(4). For the reasons set forth below, the undersigned
recommends that the Court reverse defendant's decision to
deny benefits and remand this matter for further
Lish filed applications for a period of disability and
disability insurance benefits and for SSI, both on December
6, 2013. Dkt. 9, Administrative Record (AR) 16. He alleged in
his applications that he became disabled beginning October 3,
2010. Id. His application was denied on
initial administrative review and on reconsideration.
Id. A hearing was held before an administrative law
judge (ALJ) on September 11, 2015. AR 69-103. Mr. Lish and a
vocational expert appeared and testified. At the hearing, Mr.
Lish amended the alleged onset date to April 27, 2011. AR 40.
found that Mr. Lish could perform jobs that exist in
significant numbers in the national economy, and therefore
that he was not disabled. AR 16-32 (ALJ decision dated
February 3, 2016). The Appeals Council denied Mr. Lish's
request for review on March 7, 2017, making the ALJ's
decision the final decision of the Commissioner. AR 1. Mr.
Lish appealed that decision in a complaint filed with this
Court on May 17, 2017. Dkt. 3; 20 C.F.R. §§
determined that Mr. Lish suffered from the following severe
impairments: “Schizoaffective disorder, panic disorder
with agoraphobia, myofascial pain syndrome, fibromyalgia,
obstructive sleep apnea, and right carpal tunnel
syndrome.” AR 19. The ALJ reviewed the medical evidence
and decided that Mr. Lish was not disabled, because even with
the severe impairments he could still perform certain types
of “light work.” AR 19, 22-30.
parties disagree regarding whether the ALJ erred in
considering opinions from four medical professionals. The
parties also disagree about whether the ALJ erred in
discounting Mr. Lish's testimony regarding severity of
symptoms and in assessing Mr. Lish's residual functional
capacity (RFC). And the parties disagree about whether the
ALJ's consideration of the medical evidence and Mr.
Lish's testimony affected the ALJ's step five finding
that Mr. Lish can perform jobs existing in significant
numbers in the national economy.
Lish seeks reversal of the ALJ's decision and remand for
further administrative proceedings, arguing that the ALJ
misapplied the law and lacked substantial evidence for his
reasons set forth below, the undersigned concludes that the
ALJ did not properly apply the law at step five of the
disability analysis and substantial evidence does not support
his rejection of the medical opinion evidence and of Mr.
Lish's testimony. The undersigned recommends that the
ALJ's decision to deny benefits should be reversed, and
the Court should remand for further proceedings.
STANDARD OF REVIEW AND SCOPE OF REVIEW
Commissioner employs a five-step “sequential evaluation
process” to determine whether a claimant is disabled.
20 C.F.R. §§ 404.1520, 416.920. If the ALJ finds
the claimant disabled or not disabled at any particular step,
the ALJ makes the disability determination at that step and
the sequential evaluation process ends. See id.
five steps are a set of criteria by which the ALJ considers:
(1) Does the claimant presently work in substantial gainful
activity? (2) Is the claimant's impairment (or
combination of impairments) severe? (3) Does the
claimant's impairment (or combination) equal or meet an
impairment that is listed in the regulations? (4) Does the
claimant have RFC, and if so, does this RFC show that the
complainant would be able to perform relevant work that he or
she has done in the past? And (5) if the claimant cannot
perform previous work, are there significant numbers of jobs
that exist in the national economy that the complainant
nevertheless would be able to perform in the future?
Keyser v. Comm'r of Soc. Sec. Admin., 648 F.3d
721, 724-25 (9th Cir. 2011).
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576). If more than
one rational interpretation can be drawn from the evidence,
then the Court must uphold the ALJ's interpretation.
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The Court may not affirm by locating a quantum of supporting
evidence and ignoring the non-supporting evidence.
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). The Court is required to weigh both the evidence that
supports, and evidence that does not support, the ALJ's
conclusion. Id. The Court may not affirm the
decision of the ALJ for a reason upon which the ALJ did not
rely. Id. Only the reasons identified by the ALJ are
considered in the scope of the Court's review.
THE ALJ'S CONSIDERATION OF THE MEDICAL EVIDENCE
Lish alleges that the ALJ erred by rejecting the opinions of
four medical sources: Dr. Widlan (examining psychiatrist),
Dr. Mitchell (examining clinical psychologist), Dr. Cantrell
(examining psychiatrist), and Dr. Adam (treating physician).
Dkt. 11 at 4. The Social Security Administration argues that
the ALJ had substantial evidence to support the decision that
Mr. Lish was not disabled, and provided clear and convincing
reasons (where the opinions are not contradicted), and
specific legitimate reasons (where the opinions are
contradicted), for rejecting opinions of these four medical
professionals. In addition, the defendant asserts that the
ALJ properly relied instead on the opinions of Dr. Gary
Gaffield, Thomas Clifford, Ph.D., and Dan Donahue, Ph.D. Dkt.
12 at 8-15. The defendant also argues that error, if any, was
harmless because the ALJ had other valid reasons and evidence
that provided substantial evidence to support the ALJ's
decision. Dkt. 12 at 15.
is responsible for determining credibility and resolving
ambiguities and conflicts in the medical evidence.
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). Where the evidence is inconclusive,
“‘questions of credibility and resolution of
conflicts are functions solely of the [ALJ]'” and
this Court will uphold those conclusions. Morgan v.
Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601
(9th Cir. 1999) (quoting Sample v. Schweiker, 694
F.2d 639, 642 (9th Cir. 1982)). As part of this discretion,
the ALJ determines whether inconsistencies in the evidence
“are material (or are in fact inconsistencies at all)
and whether certain factors are relevant” in deciding
how to weigh medical opinions. Id. at 603.
must support his or her findings with “specific, cogent
reasons.” Reddick, 157 F.3d at 725. To do so,
the ALJ sets out “a detailed and thorough summary of
the facts and conflicting clinical evidence, ”
interprets that evidence, and makes findings. Id.
The ALJ does not need to discuss all the evidence the parties
present but must explain the rejection of “significant
probative evidence.” Vincent on Behalf of Vincent
v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)
(citation omitted). The ALJ may draw inferences
“logically flowing from the evidence.”
Sample, 694 F.2d at 642. And the Court itself may
draw “specific and legitimate inferences from the
ALJ's opinion.” Magallanes v. Bowen, 881
F.2d 747, 755 (9th Cir. 1989).
reject the uncontradicted opinion of either a treating or
examining physician, an ALJ must provide clear and convincing
reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th
Cir. 2017). When other evidence contradicts the treating or
examining physician's opinion, the ALJ must still provide
“specific and legitimate reasons” to reject that
opinion. Id. “‘The ALJ can meet this
burden by setting out a detailed and thorough summary of the
facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings.'”
Id. (quoting Magallanes, 881 F.2d at
751). In either case, the ALJ's reasons must be
supported by substantial evidence in the record. Lester
v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
a non-examining physician's opinion may constitute
substantial evidence for an ALJ's findings if that
opinion “is consistent with other independent evidence
in the record.” Tonapetyan v. Halter, 242 F.3d
1144, 1149 (9th Cir. 2001). The opinion of a non-examining
physician does not, standing alone, constitute substantial
evidence concerning the rejection of the opinion of either an
examining physician or a treating physician. Lester,
81 F.3d at 831.
case, the ALJ reviewed the medical evidence to arrive at Mr.
Lish's RFC. The Commissioner uses a claimant's RFC
assessment at steps four and five to determine whether he or
she can perform his or her past relevant work and whether he
or she can do other work. SSR 96-8p, 1996 WL 374184 *2. The
RFC is what the claimant “can still do despite his or
her limitations.” Id.
based his assessment of Mr. Lish's RFC on an examination
of the medical evidence, and in part on his rejection of the
opinions of David Widlan, Ph.D., Melanie Mitchell, Psy.D.,
and Rowin Cantrell, M.D., that Mr. Lish's mental health
conditions would significantly limit his ability to perform
functions necessary to hold a job, and on his rejection of
the opinion of Margaret Adam, M.D., that Mr. Lish's
physical conditions would also limit him. AR 26-28, 30.
found that Mr. Lish had the RFC:
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that the claimant can frequently stoop,
kneel, crouch, crawl, and climb ramps and stairs. The
claimant should avoid climbing ladders, ropes, and scaffolds
and is limited to frequent handling and fingering. The
claimant is able to adapt to a predictable work routine with
no more than occasional changes in terms of assigned work
tasks and the procedures for accomplishing those tasks. The
claimant is limited to occasional and superficial public
interaction. The claimant is able to interact with co-workers
on a casual and superficial basis but would not do well as a
member of a highly interactive or interdependent work group.
AR 22 (emphasis in original).
vocational expert testified that a person with Mr. Lish's
RFC could work as a marking clerk, a routing clerk, or
mailroom clerk. AR 101. The ALJ accordingly found Mr. Lish
not disabled at step five. AR 31-32.
Dr. Widlan's Examining Opinion
Widlan examined Mr. Lish in March 2014. AR 517. He based his
opinion on a clinical interview that included a mental status
examination (MSE), as well as records from Sound Mental
Health dated February 2013 to January 2014 and one record
from Neighborcare Health, dated December 2013. Id.
He reviewed Mr. Lish's reported history of his
conditions: in particular, that Mr. Lish has experienced
auditory hallucinations since he was 20 years old and hears
voices telling him to hurt himself and others, though he can
distinguish reality from hallucinations. Id. Mr.
Lish also described symptoms of depression, general
dysphoria, anhedonia, anxiety, and panic attacks.
Widlan's examination found Mr. Lish's grooming to be
“marginal;” that Mr. Lish showed anxiety and no
signs of malingering; that he described his mood as depressed
and his affect was correspondingly flat; that he experienced
auditory hallucinations; that he reported impaired activities
of daily living and social functioning; and that he had some
difficulty concentrating. AR 519-20. Dr. Widlan made
unremarkable observations in other areas, including memory,
insight, and abstraction. Id. Dr. Widlan listed
diagnoses of schizoaffective disorder and panic disorder
without agoraphobia, along with methamphetamine abuse in
long-term sustained remission. AR 521. He scored Mr. Lish at
42 on the global assessment of functioning (GAF), indicating
“‘[s]erious symptoms . . . [or] serious
impairment in social, occupational, or school functioning,