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Vandusen v. Berryhill

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

May 29, 2018

NANCY BERRYHILL, Deputy Commissioner of Social Security Operations, Defendant.


          Theresa L. Fricke United States Magistrate Judge

         Ronald Lee Vandusen has brought this matter for judicial review of defendant's denial of his applications for disability insurance and supplemental security income (SSI) 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 finds that defendant's decision to deny benefits should be reversed, and that this matter should be remanded for further administrative proceedings.

         I. BACKGROUND

         Mr. Vandusen filed applications for disability insurance benefits and for SSI benefits, alleging in both applications (filed May 2, 2014) that he became disabled beginning August 30, 2012. Dkt. 10, Administrative Record (AR) 22. Mr. Vandusen later amended his alleged onset date to February 15, 2014. Id. Both applications were denied on initial administrative review and on reconsideration. Id. A hearing was held on October 28, 2015 before an administrative law judge (ALJ). AR 45-72. Mr. Vandusen and a vocational expert testified.

         The ALJ found that Mr. Vandusen could perform jobs existing in significant numbers in the national economy and therefore that he was not disabled. AR 37. The Appeals Council denied Mr. Vandusen's request for review on April 6, 2017, making the ALJ's decision the final decision of the Commissioner. AR 1. Mr. Vandusen appealed that decision in a complaint filed with this Court on October 16, 2017. Dkt. 4; 20 C.F.R. §§ 404.981, 416.1481.

         Mr. Vandusen 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 evaluating the medical opinion evidence from J. Keith Peterson, Ph.D., and Lezlie Pickett, Ph.D.; (2) in discounting Mr. Vandusen's testimony about his symptoms; (3) in assessing Mr. Vandusen's residual functional capacity; and (4) consequently, in finding Mr. Vandusen could perform other jobs existing in significant numbers in the national economy. Dkt. 12, 17.

         For the reasons set forth below, the Court finds that the ALJ erred in evaluating the medical opinion evidence and Mr. Vandusen's testimony, and therefore in assessing Mr. Vandusen's RFC and finding him not disabled. Accordingly, the Court reverses the decision to deny benefits and remands for further administrative proceedings.


         The Commissioner employs a five-step “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 404.1520. If the ALJ finds the claimant disabled or not disabled at any particular step, the ALJ makes the disability determination at that step and the sequential evaluation process ends. See id.

         The five steps are a set of criteria by which the ALJ considers: (1) Does the claimant presently work in substantial gainful activity? (2) Is the claimant's impairment (or combination of impairments) severe? (3) Does the claimant's impairment (or combination) equal or meet an impairment that is listed in the regulations? (4) Does the claimant have RFC, and if so, does this RFC show that the complainant would be able to perform relevant work that he or she has done in the past? And (5) if the claimant cannot perform previous work, are there significant numbers of jobs that exist in the national economy that the complainant nevertheless would be able to perform in the future? Keyser v. Comm'r of Soc. Sec. Admin., 648 F.3d 721, 724-25 (9th Cir. 2011).

         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires “‘more than a mere scintilla, '” though “‘less than a preponderance'” of the evidence. Id. (quoting Desrosiers, 846 F.2d at 576). If more than one rational interpretation can be drawn from the evidence, then the Court must uphold the ALJ's interpretation. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court may not affirm by locating a quantum of supporting evidence and ignoring the non-supporting evidence. Id.

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (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 Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. And only the reasons the ALJ identified are considered in the scope of the Court's review. Id.


         Mr. Vandusen argues the ALJ failed to properly consider the opinion evidence submitted by examining phsychologists Dr. Peterson and Dr. Pickett. Dkt. 12 at 4-9. He argues that examining psychologist Dr. Peterson's opinion should have been given greater weight by the ALJ and that examining psychologist Dr. Pickett's opinion should not have been given “great weight.” Dkt. 12 at 4-9.

         The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the evidence is inconclusive, “questions of credibility and resolution of conflicts are functions solely of the [ALJ].” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such situations, “the ALJ's conclusion must be upheld.” Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Determining whether inconsistencies in the evidence “are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount” medical opinions “falls within this responsibility.” Id. at 603.

         In resolving questions of credibility and conflicts in the evidence, an ALJ's findings “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. The ALJ also may draw inferences “logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the Court itself may draw “specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755, (9th Cir. 1989).

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). 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.” Id. 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.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984).

         In general, more weight is given to a treating physician's opinion than to the opinions of those who do not treat the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). On the other hand, an ALJ need not accept the opinion of a treating physician “if that opinion is brief, conclusory, and inadequately supported by clinical findings” or “by the record as a whole.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An examining physician's opinion is “entitled to greater weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830-31. And a non-examining physician's opinion may constitute substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 830-31; Tonapetyan, 242 F.3d at 1149.

         a. Dr. Peterson, Examining Psychologist

         Mr. Vandusen contends that the ALJ erred in rejecting the opinion of examining psychologist J. Keith Peterson, Ph.D. The ALJ's reasons for rejecting Dr. Peterson's opinion are not clear and convincing or supported by substantial evidence.

         Dr. Peterson examined Mr. Vandusen in October 2014. AR 478. He interviewed and observed Mr. Vandusen, reviewed the “very limited medical records” available, performed a mental status examination and diagnostic interview, and conducted several tests, including the Wechsler Adult Intelligence Scale, Wechsler Memory Scale, and trail making tests. AR 478-79.

         Dr. Peterson diagnosed Mr. Vandusen with “depressive disorder, recurrent moderate, ” post-traumatic stress disorder (PTSD) “with delayed express[ion], ” and “psychological factors affecting compliance in treating a physical condition.” AR 484. He attributed Mr. Vandusen's PTSD to his combat experience in the military. Id. He opined that Mr. Vandusen “has the cognitive skills to be able to work.” Id. He noted that Mr. Vandusen had worked full time for eighteen months with PTSD and depression symptoms, but that Mr. Vandusen “lost that position [due] at least in part (probably in large part) to his long-term inability to relate to others and his PTSD symptoms.” Id.

         Dr. Peterson further opined that Mr. Vandusen had “a marginal prognosis for finding and keeping work at the current time, ” and that this prognosis “would improve to fair to good if plaintiff were to successfully complete a comprehensive PTSD treatment program.” AR 485. Dr. Peterson explained:

At the current time, his avoidance behaviors (a symptom of PTSD) would lead to irregular attendance at work. He could be expected to have trouble relating to coworkers and supervisors. He is able to learn and retain simple and more difficult material. He may have focusing lapses on the job, and could not be trusted in a job requiring constant focusing or with safety risks. He has a low frustration tolerance at the current time.

Id. Dr. Peterson added with respect to Mr. Vandusen's physical condition, “I saw no stamina issues, despite his pain issues. He will have significant issues with ambulation.” Id. He concluded, “[i]f he were to return to work, a maintenance position like the one he had would seem optimal.” Id.

         The ALJ gave little weight to Dr. Peterson's opinion. AR 33. The ALJ listed several reasons: He found that “Dr. Peterson's opinion does not reflect the claimant's functioning over the longitudinal record, ” observing that Mr. Vandusen had been able to work despite his symptoms, that he had sought treatment only a month before the evaluation, and that several months later, in January 2015, he reported “that his depression had improved, his anxiety was reduced and his anger was decreased.” Id. (citing AR 545-46). The ALJ reasoned that because Dr. Peterson gave opinions on Mr. Vandusen's physical limitations, and Dr. Peterson is not qualified to assess Mr. Vandusen's physical impairments, Dr. Peterson must therefore have “relied heavily on ...

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