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Walker v. Berryhill

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

May 30, 2018

RACHEL WALKER, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security Operations, Defendant.

          ORDER AFFIRMING DEFENDANT'S DECISION TO DENY BENEFITS

          Theresa L. Fricke United States Magistrate Judge.

         Plaintiff 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.

         FACTUAL AND PROCEDURAL HISTORY

         The 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.

         On 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. AR 31-64.

         In a 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.

         In this 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 22-23.

         Plaintiff's 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. §§ 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. 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.

         DISCUSSION

         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). 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.

         The 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. Id.

         I. ALJ's Evaluation of the Medical and Other Opinion Evidence

         Plaintiff 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.

         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 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.

         When a 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.

         When a 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 676.

         a. Dr. Lewis, treating physician

         Plaintiff 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.

         The ALJ 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.

         Internal 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 internally inconsistent).

         The 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.

         The ALJ 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).

         Dr. Lewis opined that plaintiff was limited to sedentary work on a state agency disability evaluation form.[1] 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 ...


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