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Lish v. Berryhill

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

January 31, 2018

MATTHEW ORAL LISH, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke United States Magistrate Judge.

         Matthew 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 administrative proceedings.

         I. BACKGROUND

         Mr. 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.[1] 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.

         The ALJ 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. §§ 404.981, 416.1481.

         The ALJ 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.

         The 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.

         Mr. 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 decision.

         For the 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.

         II. STANDARD OF REVIEW AND SCOPE OF REVIEW

         The 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.

         The 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).

         The 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. Id.

         The 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. Id.

         III. THE ALJ'S CONSIDERATION OF THE MEDICAL EVIDENCE

         Mr. 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.

         The ALJ 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.

         The ALJ 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).

         To 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).

         Finally, 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.

         In this 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.

         The ALJ 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.

         The ALJ 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).

         The 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.

         A. Dr. Widlan

         1. Dr. Widlan's Examining Opinion

         Dr. 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. Id.

         Dr. 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, ' ...


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