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Rovo v. Berryhill

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

May 14, 2018

LASZLO ROVO JR, Plaintiff,
Nancy A Berryhill, Deputy Commissioner of Social Security Operations, Defendant.


          Theresa L. Fricke United States Magistrate Judge

         Plaintiff has brought this matter for judicial review of defendant's denial of his applications for disability insurance benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13.

         For the reasons set forth below, the Court concludes that the Administrative Law Judge ("ALJ") erred when he did not provide specific and legitimate reasons for rejecting the opinions of treating physician Dr. Jeff Hooper, D.O. and examining physician Dr. Jennifer Severns, Ph.D., and that the ALJ's error was harmful. The Court therefore finds that defendant's decision to deny benefits should be reversed, and that this matter should be remanded for further administrative proceedings.


         On November 4, 2013, plaintiff filed an application for disability insurance benefits alleging that he became disabled beginning November 1, 2011. Dkt. 5 Administrative Record (AR) 174-76. The application was denied on initial administrative review and on reconsideration. AR 62-70. A hearing was held on May 13, 2016 before ALJ Gary Elliott at which plaintiff appeared and testified, as did a vocational expert. AR 45-61.

         In a written decision dated June 8, 2016, the ALJ documented his analysis at each of the five steps. AR 7-36. Steps one and two were resolved in plaintiffs favor. AR 12. At step three, the ALJ found that plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, major depressive disorder, generalized anxiety disorder, panic disorder with agoraphobia, narcotic dependence, and somatic symptom disorder, but that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. AR 12-13. The ALJ considered plaintiffs residual functional capacity (RFC) and found at step four that plaintiff could not perform his past relevant work. AR 14-25. But the ALJ found at step five that plaintiff could perform jobs that exist in significant numbers in the national economy and therefore he was not disabled. AR 26-27.

         Plaintiffs request for review was denied by the Appeals Council on July 18, 2017, making the ALJ's decision the final decision of the Commissioner, which plaintiff then appealed in a complaint filed with this Court on September 15, 2017. AR 1-6; Dkt. 1; 20 C.F.R. §§ 404.981, 416.1481.

         Plaintiff seeks reversal of the ALJ's decision and remand for an award of benefits, or in the alternative for further administrative proceedings, arguing the ALJ erred: (1) in failing to adequately account for plaintiffs headaches and cognitive disorders as impairments in the RFC; (2) failed to adequately analyze why plaintiff did not meeting listing 1.04; and (3) in evaluating the medical opinion evidence. Dkt. 7 at 1-2.


         The Commissioner's determination that a claimant is not disabled must be upheld if the "proper legal standards" have been applied, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991). "A decision supported by substantial evidence nevertheless will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Carr, 772 F.Supp. at 525 (citing Browner v. Sec 'y of Health and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 1193.

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Commissioner's findings will be upheld "if supported by inferences reasonably drawn from the record." Batson, 359 F.3d at 1193. Substantial evidence requires the Court to determine whether the Commissioner's determination is "supported by more than a scintilla of evidence, although less than a preponderance of the evidence is required." Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). "If the evidence admits of more than one rational interpretation, " that decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That is, "[w]here there is conflicting evidence sufficient to support either outcome, " the Court "must affirm the decision actually made." Allen, 749 F.2d at 579 (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).

         I. The ALJ's Evaluation of Plaintiff s Back Impairment and Listing 1.04

         Plaintiff alleges that the ALJ committed harmful error in his step three analysis of Listing 1.04. Dkt. 7 at 9-10. Defendant contends that there is no error, and that even if the ALJ erred, the error was harmless. Dkt. 8 at 2-4.

         At step three of the sequential disability evaluation process, the ALJ must evaluate the claimant's impairments to see if they meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). See 20 C.F.R § 404.1520(d), § 416.920(d); Tackettv. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If any of the claimant's impairments meet or medically equal a listed impairment, he or she is deemed disabled. Id. The burden of proof is on the claimant to establish he or she meets or equals any of the impairments in the Listings. See Tackett, 180 F.3d at 1098. "A generalized assertion of functional problems, " however, "is not enough to establish disability at step three." Id. at 1100 (citing 20 C.F.R. § 404.1526).

         A mental or physical impairment "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §404.1508, §416.908. It must be established by medical evidence "consisting of signs, symptoms, and laboratory findings." Id; see also SSR 96-8p, 1996 WL 374184 *2 (determination that is conducted at step three must be made on basis of medical factors alone). An impairment meets a listed impairment "only when it manifests the specific findings described in the set of medical criteria for that listed impairment." Social Security Ruling ("SSR") 83-19, 1983 WL 31248 *2.

         An impairment, or combination of impairments, equals a listed impairment "only if the medical findings (defined as a set of symptoms, signs, and laboratory findings) are at least equivalent in severity to the set of medical findings for the listed impairment." Id; see also Sullivan v. Zebley, 493 U.S. 521, 531 (1990) ("For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.") (emphasis in original). However, "symptoms alone" will not justify a finding of equivalence. Id. The ALJ also "is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence." Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).

         The ALJ need not "state why a claimant failed to satisfy every different section of the listing of impairments." Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (finding ALJ did not err in failing to state what evidence supported conclusion that, or discuss why, claimant's impairments did not meet or exceed Listings). This is particularly true where, as noted above, the claimant has failed to set forth any reasons as to why the Listing criteria have been met or equaled. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (finding ALJ's failure to discuss combined effect of claimant's impairments was not error, noting claimant offered no theory as to how, or point to any evidence to show, his impairments combined to equal a listed impairment).

         At step three, the ALJ found that plaintiff did not have an impairment or condition of impairments that met or medically equaled the severity of one of the listings, specifically: Listings 1.02, 1.04, the kidney Listings, and the mental health Listings. AR 13-14. With respect to Listing 1.04, the ALJ found that the medical evidence did not establish the "requisite evidence of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis as required under listing 1.04. Moreover, the ALJ found no evidence that the claimant's back disorder has resulted in an inability ambulate effectively, as defined in 1.00(B)(2)(b)." AR 13.

         Plaintiff challenges the ALJ's step three determination, contending that the inability to ambulate effectively, as defined in 100(B)(2)(b), is only required to meet Listing 1.04(C). Thus, plaintiff asserts he could have met Listing 1.04(A) or 1.04(B) despite the lack of evidence of inability to ambulate effectively. Dkt. 7 at 10. However, plaintiff has failed to set forth any evidence to show how the Listing criteria for 1.04(A) or 1.04(B) have been met or equaled. Lewis, 236F.3d at 514.

         Plaintiff does not refer to any medical evidence in support of his argument, nor does he point to any medical opinion that used or interpreted his medical records to find that he has an impairment or combined impairments which meet or medically equal those Listing criteria. Therefore, the plaintiff has not met his burden of demonstrating that his symptoms met or equaled all of the criteria of Listing 1.04. See Bowen v. Yuckert, 482 U.S. 137, 145-152 119 (1987) (placing burden on claimant to produce evidence that impairment meets listing). Accordingly, the Court concludes that the ALJ did not err at step three of the sequential analysis.

         II. The ALJ's Evaluation of the Medical Opinion Evidence

         Three types of physicians may offer opinions in Social Security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians)." Lester, 81 F.3d at 830. A treating physician's medical opinion is controlling, as long as it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the claimant's] case record." Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the plaintiff, and an examining physician's opinion is generally entitled to more weight than that of a non-examining physician. Lester, 81 F.3dat830.

         An ALJ need not accept the opinion of a treating physician when it is brief, conclusory, and lacks adequate support in objective medical findings and the record as a whole. Batson, 359 F.3d at 1195. A non-examining physician's opinion may constitute substantial evidence if "it is consistent with other independent evidence in the record." Lester, 81 F.3d at 830-31; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

         If a treating or examining physician's opinion is not contradicted, the ALJ may only reject that opinion if the ALJ provides clear and convincing reasons. Trevizo, 871 F.3d at 675. Even when a treating or examining physician's opinion is contradicted, an ALJ may only reject that opinion "by providing specific and legitimate reasons that are supported by substantial evidence." Trevizo, 871 F.3d at 675 (quoting Ryan v. Comm 'r of Soc. Sec, 528 F.3d 1194, 1198 (9th Cir. 2008)). However, the ALJ "need not discuss all evidence presented" to him or her. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original). The ALJ must only explain why "significant probative evidence has been rejected." Id.

         "[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Garrison v. Colvin,759 F.3d 995, 1012-13 (9th Cir. 2014) ...

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