United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
Theresa L. Fricke United States Magistrate Judge.
has brought this matter for judicial review of
defendant's denial of her application 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 affirms
defendant's decision to deny benefits.
AND PROCEDURAL HISTORY
plaintiff, Ms. Rachel Walker, suffered a laceration of her
right wrist on October 17, 2010 while working at Saint Joseph
Medical Center in Tacoma, Washington. Dkt. 9 Administrative
Record (AR) 683-686. She had two surgeries (October 2010 and
April 2012) for the injury to her wrist. AR 700-703, 803,
805-808. She underwent surgery for cervical C4-7 discectomy
and fusion (with allograft and plating) on September 16,
2015. AR 899, 903.
April 4, 2014, plaintiff filed an application for disability
insurance benefits alleging that she became disabled
beginning January 1, 2013. AR 199-205, 209-215, 216-225. The
application was denied on initial administrative review and
on reconsideration. AR 145-47, 152-56. A hearing was held on
November 24, 2015 before ALJ Robert P. Kingsley at which
plaintiff appeared and testified, as did a vocational expert.
written decision dated January 29, 2016, the ALJ documented
his analysis at each of the five steps of the
Commissioner's sequential disability evaluation process.
AR 8-30. At the first step, the ALJ considers whether the
claimant is engaged in “substantial gainful
activity.” Kennedy v. Colvin, 738 F.3d 1172,
1175 (9th Cir. 2013) (citing C.F.R. § 416.920(a)(4)). At
the second step, the ALJ considers “the severity of the
claimant's impairments. Id. If the evaluation
process “continues beyond the second step, the third
step asks whether the claimant's impairment or
combination of impairments meets or equals a listing under 20
C.F.R. pt. 404, subpt. P, app. 1.” Id.
“If so, the claimant is considered disabled and
benefits are awarded, ending the inquiry.” Id.
If not, the ALJ considers the claimant's residual
functional capacity (“RFC”) “in determining
whether the claimant can still do past relevant work”
at step four, “or make an adjustment to other
work” at step five. Id.
case, steps one and two were resolved in plaintiff's
favor. AR 13. At step two, the ALJ found plaintiff had the
following severe impairments: right wrist laceration status
post surgeries, conversion syndrome, mild spondylosis at
¶ 5, and degenerative disc disease of the cervical spine
status post cervical discectomy and fusion. AR 13-14. At step
three, the ALJ determined 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 15. The ALJ then considered plaintiff's
RFC and found at step four that she could not perform her
past relevant work, AR 15-22, but that she could perform
other jobs that exist in significant numbers in the national
economy at step five, and therefore she was not disabled, AR
request for review was denied by the Appeals Council on
February 11, 2016, making the ALJ's decision the final
decision of the Commissioner. Plaintiff filed an appeal on
July 27, 2017. AR 1-7; Dkt. 1, 4; 20 C.F.R. §§
seeks reversal of the ALJ's decision and remand for an
award of benefits, or in the alternative for further
administrative proceedings. She alleges the ALJ erred: (1) in
evaluating the medical opinion evidence of Dr. Neville Lewis,
M.D.; (2) in evaluating the “other source”
opinions of treating professional Heidi Bray, Advanced
Registered Nurse Practitioner (ARNP), and occupational
therapist Julie Milasich, OTR/L, CHT; (3) in evaluating the
lay witness testimony of plaintiff's neighbor Nicole
Brown; (4) in rejecting plaintiff's subjective symptom
testimony; and (5) given these errors, in assessing
plaintiff's RFC and in finding at step five that
plaintiff could perform other jobs and therefore was not
disabled. Dkt. 11.
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).
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). That is, “[w]here there is conflicting
evidence sufficient to support either outcome, ” the
Court “must affirm the decision actually made.”
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)
(quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th
Cir. 1971)). The Court, however, may not affirm by locating a
quantum of supporting evidence and ignoring the
non-supporting evidence. Orn v. Astrue, at 630.
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). The Court also must 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. Only the reasons identified by the ALJ are
considered in the scope of the Court's review.
ALJ's Evaluation of the Medical and Other Opinion
challenges the ALJ's decision rejecting the opinion
evidence of treating physician, Dr. Neville Lewis, M.D.;
treating ARNP, Heidi Bray; and occupational therapist, Julie
Milasich, OTR/L, CHT. Dkt. 11 at 4-10. Defendant argues,
however, and the Court agrees that the ALJ did not err in
rejecting this evidence. Dkt. 12 at 5-8.
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 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. Id. 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.
treating physician's opinion is not contradicted it will
be given controlling weight, if it is well-supported by
medically acceptable clinical and laboratory techniques and
is consistent with substantial evidence in the case record.
Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir.
2017). The Court will affirm the ALJ's rejection of an
uncontradicted opinion from a treating or examining physician
if the ALJ gives clear and convincing reasons, supported by
substantial evidence. Id.
treating or examining physician's opinion is contradicted
by another doctor's opinion, an ALJ may only reject that
opinion “by providing specific and legitimate reasons
that are supported by substantial evidence.”
Id. (quoting Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “[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) (citing Nguyen v. Chater,
100 F.3d 1462, 1464 (9th Cir. 1996)). The ALJ is required to
“consider factors such as the length of the treating
relationship, the frequency of examination, the nature and
extent of the treatment relationship, or the supportability
of the opinion” and failure to consider these factors
before rejecting a treating physician's contradicted
opinion is reversible error. Trevizo, 871 F.3d at
Dr. Lewis, treating physician
argues that the ALJ erred in rejecting Dr. Lewis'
opinion, that Dr. Lewis supported his opinion with clinical
findings. Plaintiff contends that Dr. Lewis' opinion is
not internally inconsistent, because Dr. Lewis'
variations between plaintiff's ability to lift one and
five pounds were estimates, offered on a short term basis,
based on similar clinical findings, and all consistent with a
reduced sedentary exertion level. Dkt. 11 at 5-6.
gave Dr. Lewis' opinion little weight because the
assessments were: (1) internally inconsistent; (2)
inconsistent with the longitudinal record; and (3)
inconsistent with plaintiff's daily activities. AR 17,
18, 21. The ALJ did not make a finding that Dr. Lewis
provided an opinion that was in conflict with the opinions of
other physicians. Id. Nor did the ALJ make any
findings about the length of the treating relationship, the
frequency of examination, or the nature and extent of the
treatment relationship. Id. The ALJ found Dr.
Lewis' opinion to be internally inconsistent because in
one portion of the record Dr. Lewis opined that plaintiff was
unable to use her right hand, but then also opined that she
could occasionally lift between one to five pounds. AR 21
(citing AR 749-808, 870-873). The ALJ further noted that Dr.
Lewis limited plaintiff to sedentary work for one to ten
hours per week, but at the same time opined that she could
perform light duties. Id.
inconsistencies within a treating physician's report are
relevant evidence in judging the weight to be attributed to
that report. Rollins v. Massanari, 261 F.3d 853, 856
(9th Cir. 2001) (upholding ALJ's rejection of a treating
physician's contradicted medical opinion that was
opinion that plaintiff cannot use her right hand is, for
example, a greater limitation than, and thus inconsistent
with, the ability to occasionally lift between two and five
pounds. Compare AR 779 (plaintiff cannot use right
hand) with AR 755, 757, 760, 762, 766, 799
(plaintiff can occasionally lift between two to five pounds
with her right hand). And although Dr. Lewis'
examinations occurred within weeks of each other, plaintiff
acknowledges that both opinions, despite their discrepancies,
were based on similar clinical findings. See id.;
Dkt. 11 at 5-6.
also noted that Dr. Lewis limited plaintiff to sedentary work
for one to ten hours per week, but also opined that she could
perform light duties. AR 21. Plaintiff argues that the ALJ
misconstrued the term “light duty work” as
defined by the Washington State Department of Labor &
Industries (L&I) to mean “light work” under
the Social Security Regulations. Dkt. 11 at 6. Defendant
contends that Dr. Lewis had filled out paperwork
contemplating the definition of “light work” from
the Social Security Regulations, and thus, his reference to
“light work” reflected the definition under those
regulations. Dkt. 12 at 5-6 (citing AR 780).
Lewis opined that plaintiff was limited to sedentary work on
a state agency disability evaluation form. AR 780. On
several other occasions, however, when Dr. Lewis saw
plaintiff, he limited her to “light” duties or
“light duty” work. AR 785-87, 790-91, 797-98,
801, 872. Because Dr. Lewis completed the state agency
evaluation rom around the same time he saw plaintiff, see
id., it is unclear whether he intended his reference to