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Brown v. Berryhill

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

April 4, 2019

Kristopher B., Plaintiff,
Nancy A. Berryhill, Deputy Commissioner of Social Security for Operations, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         After 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.


         On 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.

         In 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.


         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)).


         I. Whether the ALJ erred in assessing the medical opinion evidence.

         Plaintiff alleges the ALJ failed to properly consider the medical opinion evidence of Kimberly Wheeler, Ph.D., an examining psychologist. Dkt. 14 at 4-8.

         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. 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. 1989)).

         Dr. 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).

         In the 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. 504-05.

         Dr. Wheeler opined Plaintiff had marked limitations[1] 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[2] 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 would ...

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