United States District Court, W.D. Washington
SARAH M. L'ITALIEN, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge
Sarah M. L'italien filed this action, pursuant to 42
U.S.C. § 405(g), for judicial review of Defendant's
denial of Plaintiff's applications for supplemental
security income (“SSI”) and disability insurance
benefits (“DIB”). Pursuant to 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR
13, the parties have consented to have this matter heard by
the undersigned Magistrate Judge. See Dkt. 6.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred in his
consideration of medical opinion evidence. Had the ALJ
properly considered two physician opinions, the residual
functional capacity (“RFC”) may have included
additional limitations. The ALJ's error is therefore not
harmless, and this matter is reversed and remanded pursuant
to sentence four of 42 U.S.C. § 405(g) to the Acting
Commissioner of Social Security (“Commissioner”)
for further proceedings consistent with this Order.
AND PROCEDURAL HISTORY
October 9, 2007, Plaintiff filed applications for SSI and
DIB, alleging disability as of June 1, 2006. See
Dkt. 9, Administrative Record (“AR”) 63.
Plaintiff has had three ALJ hearings. ALJ Robert M. McPhail
held the first hearing on November 3, 2009. AR 78-122. On
March 25, 2010, ALJ McPhail issued an unfavorable decision,
finding Plaintiff not disabled. AR 63-73. The Appeals Council
denied review of ALJ McPhail's decision. AR 52-54.
Plaintiff thereafter sought judicial review of the ALJ's
decision in the United States District Court for the Western
District of Washington. See AR 535-37. On November
28, 2011, the Court issued an Order remanding the case to the
Commissioner for further administrative proceedings because
portions of the hearing recording were inaudible. AR 538-41.
David Johnson held a second hearing on September 6, 2012. AR
123-78. At the hearing, Plaintiff amended her alleged onset
date of disability to December 31, 2009. See AR 135,
744. On September 27, 2012, ALJ Johnson issued another
unfavorable decision, finding Plaintiff not disabled. AR
29-45. Plaintiff sought judicial review of the ALJ's
decision for the second time, and the Court remanded the case
to the Commissioner for further administrative proceedings.
See AR 846-60.
Johnson held the third hearing in this matter on October 12,
2016. AR 771-815. In a decision dated January 6, 2017, ALJ
Johnson again determined Plaintiff to be not disabled. AR
744-61. Plaintiff did not seek review by the Appeals Council,
making the ALJ's decision the final decision of the
Commissioner. See AR 741-42; 20 C.F.R. §
404.981, § 416.1481. Plaintiff now appeals ALJ
Johnson's January 6, 2017 decision.
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred: (1) in his treatment of the medical opinion evidence;
(2) by not giving clear and convincing reasons for
discounting Plaintiff's subjective symptom testimony, and
not giving germane reasons to reject lay witness testimony;
and (3) by making an RFC and Step Five findings that were
unsupported by substantial evidence. Dkt. 15, pp. 2, 3-18.
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 properly considered the medical opinion
argues the ALJ erred in his consideration of the medical
opinion evidence. Dkt. 15, pp. 2-7. Specifically, Plaintiff
argues the ALJ erred in his treatment of medical opinion
evidence from (1) Dr. James Parker, M.D., (2) Dr. Kimberly
Wheeler, Ph.D., (3) Dr. Leilani Oana, Ph.D., (4) Dr. Jeff
Bremer, Ph.D., (5) Dr. Melinda Losee, Ph.D., (6) Dr. Miller
(“Rocky”) Garrison, Ph.D., (7) Dr. Jan Lewis,
Ph.D., and (8) Dr. Mary Gentile, Ph.D. Id. at 3-7.
must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of either a treating or
examining physician. Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1996) (citing Pitzer v. Sullivan, 908
F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849
F.2d 418, 422 (9th Cir. 1988)). When a treating or examining
physician's opinion is contradicted, the opinion can be
rejected “for specific and legitimate reasons that are
supported by substantial evidence in the record.”
Lester, 81 F.3d at 830-31 (citing Andrews v.
Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray
v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ
can accomplish this by “setting out a detailed and
thorough summary of the facts and conflicting clinical
evidence, stating [her] interpretation thereof, and making
findings.” Reddick v. Chater, 157 F.3d 715,
725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989)).
first maintains the ALJ erred in his treatment of examining
physician Dr. Parker. Dkt. 15, pp. 3-4.
April 21, 2012, Dr. Parker performed an evaluation of
Plaintiff. See AR 728-31. As part of his evaluation,
Dr. Parker reviewed records from two of Plaintiff's
previous psychological evaluations, reviewed her medical and
family history with her, discussed her activities of daily
living, and conducted a mental status examination.
See AR 728-31. In the mental status examination, Dr.
Parker found Plaintiff had normal grooming and hygiene, and
was dressed appropriately. AR 730. Dr. Parker determined
Plaintiff's thinking was linear and goal-directed. AR
730. He also found she was “a bit immature in terms of
some of her mannerisms and gestures.” AR 730.
Parker opined Plaintiff had “good attention to
detail” and could “do simple and repetitive tasks
with normal pace.” AR 731. However, “her accuracy
would be diminished as would her ability to sustain tasks
over time.” AR 731. In addition, Dr. Parker determined
Plaintiff “would likely be able to do reasonably well
in a sheltered work setting.” AR 731. Dr. Parker
further opined Plaintiff comes “across as younger than