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Bender v. Berryhill

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

May 10, 2018

KELLY BENDER, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         After 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.

         FACTUAL AND PROCEDURAL HISTORY

         On 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, § 416.1481.

         In 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.

         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 from Dr. Doherty.

         Plaintiff 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.

         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 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)).

         Dr. 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.

         In 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 drive ...


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