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Gipson v. Berryhill

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

March 1, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff Michele Nicole Gipson filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the Acting Commissioner of Social Security's (“Commissioner”) denial of Plaintiff's applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). 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 generally Dkt.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred regarding the medical opinion evidence from Dr. Kristine S. Harrison, Psy.D., but this error was harmless. In addition, Plaintiff failed to show the ALJ erred by not including a limitation reflecting excessive absences in the residual functional capacity (“RFC”). Accordingly, the decision of the Acting Commissioner of Social Security (“Commissioner”) is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         On July 16, 2014, Plaintiff filed applications for DIB and SSI, alleging disability as of May 4, 2013. See Dkt. 7, Administrative Record (“AR”) 21. The applications were denied upon initial administrative review and on reconsideration. See AR 21. ALJ Kelly Wilson held a hearing on February 10, 2016. See AR 48-78. In a decision dated May 31, 2016, the ALJ determined Plaintiff to be not disabled. AR 21-40. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 1-4; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred: (1) in her treatment of the medical opinion evidence from Dr. Harrison; and (2) by failing to include a limitation regarding absenteeism in the RFC. Dkt. 9, pp. 4-11.


         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)).


         I. Whether the ALJ properly considered the medical opinion evidence from examining physician Dr. Harrison.

         Plaintiff argues the ALJ erred by failing to include limitations in the RFC which reflect all of the mental restrictions described by Dr. Harrison. Dkt. 9, pp. 4-10. Plaintiff also briefly mentions Dr. Harrison's opinion regarding Plaintiff's credibility. Id. at 5.

         An 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)).

         Dr. Harrison conducted a psychological evaluation of Plaintiff on October 6, 2014. See AR 603-07. As part of her evaluation of Plaintiff, Dr. Harrison reviewed records, conducted a clinical interview, and performed a mental status examination. See AR 603-07. Dr. Harrison also reviewed Plaintiff's psychosocial history, which included discussions of Plaintiff's employment, medical, and family histories. AR 604-05. In relevant part, Plaintiff told Dr. Harrison she began feeling depressed about nine to ten years ago. AR 604. She described her depression “as not wanting to do anything, wishing ‘it' would be over . . . and isolating in her room after doing the things that must be done.” AR 604. Furthermore, Dr. Harrison noted that due to Plaintiff's “significant history of trauma” - including the drowning of her first husband and near-drowning of her child - Plaintiff “is fearful of water and driving in the rain, ” avoids “going outside when it is raining heavily, ” and avoids “being around water.” AR 605; see also AR 604.

         In the mental status examination, Dr. Harrison found Plaintiff “alert and oriented, ” “well-spoken” with normal speech and coherent content, and able to concentrate “without evidence of unusual distractibility.” AR 605. Plaintiff “was tearful at appropriate times” and reluctant to talk about personal problems. AR 605. Further, on a scale of 1 to 10 - with 1 being depressed and 10 being happy - Plaintiff “described her mood two days ...

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