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Shaw v. Berryhill

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

June 14, 2018

MICHAEL ALAN SHAW, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel, United States Magistrate Judge.

         Plaintiff Michael Allen Shaw filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in her consideration of the medical opinion evidence. Had the ALJ properly considered this evidence, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for a de novo hearing consistent with this Order

         FACTUAL AND PROCEDURAL HISTORY

         On November 22, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as of September 1, 2009. See Dkt. 8, Administrative Record (“AR”) 15. The applications were denied upon initial administrative review and on reconsideration. See AR 15. ALJ Cynthia D. Rosa held a hearing on January 6, 2016. AR 39-77. In a decision dated April 29, 2016, the ALJ determined Plaintiff to be not disabled. AR 15-32. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 1-6; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred in her: (1) consideration of medical opinion evidence from examining physicians Drs. Steven Gist, M.D., and Peter Pfeiffer, M.D., and non-examining physicians, Drs. Matthew Comrie, Psy.D., Thomas Clifford, Ph.D., and Guillermo Rubio, M.D.; (2) assessment of lay witness testimony and Plaintiff's subjective symptom testimony; and (3) decision to limit cross-examination of the vocational expert (“VE”). Dkt. 15, pp. 3-13. Plaintiff requests this matter be remanded for a new hearing and decision by the ALJ. Id. at 13.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ properly considered the medical opinion evidence.

         Plaintiff maintains the ALJ failed to properly consider medical opinion evidence from Drs. Gist, Pfeiffer, Comrie, Clifford, and Rubio. Dkt. 15, pp. 3-7.

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

         A. Dr. Gist

         Plaintiff first argues the ALJ erred by giving “significant weight” to Dr. Gist's opinion yet failing to account for all parts ...


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