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L'Italien v. Berryhill

United States District Court, W.D. Washington

February 2, 2018

SARAH M. L'ITALIEN, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         After 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.

         FACTUAL AND PROCEDURAL HISTORY

         On 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.

         ALJ 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.

         ALJ 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.[1]

         In 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.

         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

         I. Whether the ALJ properly considered the medical opinion evidence.

         Plaintiff 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.

         The ALJ 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)).

         A. Dr. Parker

         Plaintiff first maintains the ALJ erred in his treatment of examining physician Dr. Parker. Dkt. 15, pp. 3-4.

         On 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.

         Dr. 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 her ...


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