United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
Kelly Bender filed this action, pursuant to 42 U.S.C. §
405(g), for judicial review of Defendant's denial of
Plaintiff's application for 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. 4.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred when he
failed to give specific and legitimate reasons to reject
evidence from Plaintiff's treating physician, Dr. Lisa
Doherty, M.D. Had the ALJ properly considered Dr.
Doherty's medical opinion, 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
April 24, 2014, Plaintiff filed an application for DIB,
alleging disability as of January 24, 2013. See Dkt.
6, Administrative Record (“AR”) 18. The
application was denied upon initial administrative review and
on reconsideration. See AR 18. ALJ Steve Lynch held
a hearing on June 22, 2016. AR 38-66. In a decision dated
October 13, 2016, the ALJ determined Plaintiff to be not
disabled. AR 18-30. 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 1-3; 20 C.F.R. § 404.981,
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by: (1) failing to provide specific and legitimate
reasons to reject medical opinion evidence from Dr. Doherty;
(2) failing to provide germane reasons to discount opinion
evidence from Dr. Kim Buswell, D.C., Mr. Brent Francisco,
M.N., A.R.N.P., P.M.H.N.P., and Mr. Rich Dillman, L.M.H.C.;
and (3) giving improper reasons to discount lay witness
testimony and Plaintiff's subjective symptom testimony.
Dkt. 11, pp. 3-17. Plaintiff argues that as a result of these
errors, an award of benefits is warranted. Id.
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
evidence from Dr. Doherty.
first argues the ALJ failed to provide specific and
legitimate reasons for discounting medical opinion evidence
from Dr. Doherty, Plaintiff's treating physician. Dkt.
11, pp. 1, 3-6.
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 his 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)).
Doherty is Plaintiff's treating physician. See,
e.g., AR 356, 361, 380, 389, 513-16 (treatment notes).
On March 10, 2015, Dr. Doherty provided her opinion about
Plaintiff's physical abilities on a “Physical
Capacities Evaluation” form. AR 411-12. Dr. Doherty
opined Plaintiff could sit for one half-hour at a time - for
a total of four hours in an eight-hour work day - and stand
and/or walk for one-half hour at a time - for a total of
four-hours in an eight-hour work day. AR 411. Furthermore,
Dr. Doherty wrote Plaintiff could lift and carry up to five
pounds frequently, and lift and carry between six and twenty
pounds occasionally, but could never lift more than 21
pounds. AR 411. Dr. Doherty also determined that while
Plaintiff was capable of simple grasping, pushing and
pulling, and fine manipulation with his hands, Plaintiff
could not use his feet for repetitive movements in operating
foot controls. AR 411.
addition, Dr. Doherty opined Plaintiff could never bend,
squat, crawl, or climb, and was limited to occasionally
lifting above shoulder level. AR 412. Dr. Doherty moreover
found Plaintiff totally restricted in his ability to work at
unprotected heights, mildly restricted in his ability to be
around moving machinery, mildly restricted in his ability to