United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING FOR FURTHER
Theresa L. Fricke United States Magistrate Judge
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
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
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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
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)).
The ALJ's Evaluation of Plaintiff s Back Impairment
and Listing 1.04
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.
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).
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.
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).
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).
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
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.
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.
The ALJ's Evaluation of the Medical Opinion
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.
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).
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.
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) ...