United States District Court, W.D. Washington, Tacoma
ORDER REVERSING DEFENDANT'S DECISION TO DENY
BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Theresa L. Fricke United States Magistrate Judge
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
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
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.
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.
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.
STANDARD OF REVIEW AND SCOPE OF REVIEW
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.
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).
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.
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.
THE ALJ'S EVALUATION OF THE MEDICAL OPINION
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.
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.
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).
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.
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
Dr. Peterson, Examining Psychologist
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
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.
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.
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.
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 ...