United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge
Kristopher B. filed this action, pursuant to 42 U.S.C. §
405(g), for judicial review of Defendant's denial of
Plaintiff's application for supplemental security income
(“SSI”). 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. 5.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred in failing
to properly consider the medical opinions of Kimberly
Wheeler, Ph.D. Had the ALJ properly considered the medical
opinion evidence, the ALJ may have determined Plaintiff is
disabled or included additional limitations in the residual
functional capacity (“RFC”) assessment.
Therefore, the ALJ's error is harmful and this matter
should be reversed and remanded pursuant to sentence four of
42 U.S.C. § 405(g) to the Deputy Commissioner of the
Social Security Administration for Operations
(“Commissioner”) for further proceedings
consistent with this Order.
AND PROCEDURAL HISTORY
April 7, 2016, Plaintiff protectively filed an application
for SSI with a stipulated onset date of January 16, 2015
(partial reopening of a prior claim). See Dkt. 12,
Administrative Record (“AR”) 124-25, 340-45, 347.
The application was denied upon initial administrative review
and on reconsideration. See AR 254-62, 266-72. A
hearing was held before ALJ Allen G. Erickson (“the
ALJ”) on June 13, 2017. See AR 110-96. In a
decision dated December 26, 2017, the ALJ determined
Plaintiff to be not disabled. See AR 20-42.
Plaintiff's request for review of the ALJ's decision
was denied by the Appeals Council, making the ALJ's
decision the final decision of the Commissioner. See
AR 7-13; 20 C.F.R. § 404.981, § 416.1481.
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by failing to properly consider: (1) the medical
opinion evidence; (2) Plaintiff's subjective symptom
testimony; (3) the lay witness testimony; and (4) the RFC and
step five findings including Plaintiff's need for a cane
and ability to frequently handle. Dkt. 14 at 1.
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
Whether the ALJ erred in assessing the medical opinion
alleges the ALJ failed to properly consider the medical
opinion evidence of Kimberly Wheeler, Ph.D., an examining
psychologist. Dkt. 14 at 4-8.
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. 1996) (citing Embrey v. Bowen, 849
F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan,
908 F.2d 502, 506 (9th Cir. 1990)). 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.
Wheeler examined Plaintiff on two occasions, once on February
22, 2016, and the second time on May 12, 2017. AR 501-05
(first examination), 830-34 (second examination).
first examination, Dr. Wheeler diagnosed Plaintiff with
anxiety disorder, NOS; unspecified psychotic disorder;
polysubstance chemical dependence in remission and cannabis
ongoing; and rule out cognitive disorder, comprehension
issue. AR 502-503. Dr. Wheeler noted Plaintiff's mood was
dysphoric and anxious and affect was blunted and nearly flat,
and Plaintiff had diminished comprehension, audio
hallucinations, and impaired memory and concentration. AR.
Wheeler opined Plaintiff had marked limitations in his ability to
adapt to changes in a routine work setting; perform
effectively in a work setting; and complete a normal work day
and work week without interruptions from psychologically
based symptoms. AR 503. Dr. Wheeler opined Plaintiff had
moderate limitations in his ability to perform activities
within a schedule, maintain regular attendance, and be
punctual within customary allowances without special
supervision. AR 503. Dr. Wheeler opined Plaintiff had an
overall severity rating of “marked” based on the
combined impact of his diagnosed mental impairments. AR 503.
Dr. Wheeler determined these limitations and impairments