United States District Court, W.D. Washington, Tacoma
JOSEPH W. G., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
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. 3.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred when he
failed to provide specific, legitimate reasons, supported by
substantial evidence, to discount medical opinion evidence
from Dr. Frances Carter, Ph.D., Dr. Terilee Wingate, Ph.D.,
and Dr. Tasmyn Bowes, M.D. Had the ALJ properly considered
these medical opinions, 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 Social Security Commissioner
(“Commissioner”) for further proceedings
consistent with this Order.
AND PROCEDURAL HISTORY
case has a lengthy procedural history. On April 15, 2008,
Plaintiff filed applications for SSI and DIB. See
Dkt. 9, Administrative Record (“AR”) 14.
Plaintiff alleges disability beginning June 1, 2007.
See AR 714. Plaintiff's applications were denied
upon initial administrative review and on reconsideration.
See AR 14. ALJ Greg G. Kenyon held the first hearing
on March 26, 2010. AR 30-65. On April 21, 2010, ALJ Kenyon
determined Plaintiff to be not disabled. AR 11-26. After the
Appeals Council denied Plaintiff's request for review of
the ALJ's decision, Plaintiff appealed ALJ Kenyon's
decision to the United States District Court for the Western
District of Washington (“Court”), which reversed
and remanded the decision. See AR 1-6, 402-30.
December 18, 2012, ALJ Robert P. Kingsley held the next
hearing. AR 354-96. In a decision dated March 11, 2013, ALJ
Kingsley found Plaintiff to be not disabled. AR 677-700.
Plaintiff sought review of ALJ Kingsley's decision, which
the Appeals Council accepted because it found Plaintiff's
DIB claim unadjudicated. See AR 308-09. On April 14,
2015, the Appeals Council found Plaintiff not disabled. AR
701-09. Plaintiff appealed to this Court, which reversed and
remanded the matter on August 24, 2016. AR 823-44.
13, 2017, ALJ S. Andrew Grace held the present hearing. AR
744-82. On March 21, 2018, the ALJ determined Plaintiff to be
not disabled. AR 710-43. The ALJ's March 21, 2018
decision is the final decision of the Commissioner.
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by failing to properly assess: (1) opinion evidence
from Drs. Carter, Wingate, and Bowes, as well as opinions
from Dr. Rebecca Jo Renn, M.D., Ms. Janet Brodsky, LICSW, Dr.
Chris Yee, M.D., and Dr. Robert Hoskins, M.D.; (2) testimony
from Plaintiff and two lay witnesses; and (3) the RFC and
Step Five findings. Dkt. 13, pp. 2-19. Plaintiff requests, as
a result of the ALJ's alleged errors, the Court remand
his claims for an award of benefits. Id. at p. 19.
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 properly considered the medical opinion
maintains the ALJ failed to properly consider opinion
evidence from Dr. Carter, Dr. Wingate, Dr. Bowes, Dr. Renn,
Ms. Brodsky, Dr. Yee, and Dr. Hoskins. Dkt. 13, pp. 3-15.
assessing an acceptable medical source, an 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)).
medical source” testimony, which the Ninth Circuit
treats as lay witness testimony, “is competent evidence
an ALJ must take into account, ” unless the ALJ
“expressly determines to disregard such testimony and
gives reasons germane to each witness for doing so.”
Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001);
Turner, 613 F.3d at 1224. In rejecting lay
testimony, the ALJ need not cite the specific record as long
as “arguably germane reasons” for dismissing the
testimony are noted. Lewis, 236 F.3d at 512.
argues the ALJ failed to properly assess medical opinion
evidence from examining physician, Dr. Carter. Dkt. 13, pp.
Carter conducted a mental evaluation of Plaintiff on July 20,
2017. AR 1309-1317. Dr. Carter opined Plaintiff “will
likely experience significant interruptions and impairment in
any work setting that requires him to engage and work with
others, but may be able to function in a setting that does
not involve much interaction with others.” AR 1314. Dr.
Carter found Plaintiff's “ability to maintain
regular attendance in the workplace is likely mildly to
moderately impaired, depending upon the extent to which
interaction with others is required.” AR 1314.
Likewise, Plaintiff's ability to complete a normal
workday or workweek without interruptions from his symptoms
mildly to moderately impaired, as is his “ability to
deal with the usual stress encountered in the workplace,
” depending upon the extent to which interaction with
others is required. AR 1314. Similarly, Dr. Carter opined
Plaintiff has moderate limitations in his ability to interact
appropriately with the public, supervisors, and co-workers AR
1316. Lastly, Dr.Carter found Plaintiff markedly impaired in
his ability to respond appropriately to usual work situations
and changes in a routine work setting. AR 1316.
summarized Dr. Carter's opinion and assigned it
“partial weight.” AR 729. The ALJ found the RFC
limited Plaintiff's social interactions in the workplace
and the amount of decisions or changes to be made in the
workplace. AR 729. However, “Dr. Carter's opinions
concerning [Plaintiff's] marked limitation to respond
appropriately to usual work situations and to changes in a
routine work setting, while accommodated somewhat in the
[RFC], are not consistent with the objection medical
evidence.” AR 729. The ALJ reasoned:
The claimant reported, after the alleged onset date,
attending a business class and preparing to start his own
business on multiple occasions, had no difficulty expressing
himself in numerous treatment encounters, and reported
himself almost totally independent in his activities of daily
living within a very recent clinical setting.
need not accept an opinion which is inadequately supported
“by the record as a whole.” Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
Cir. 2004). An ALJ may also discount a physician's
findings if those findings appear inconsistent with a
plaintiff's daily activities. See Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001). But an ALJ
cannot reject a physician's opinion in a vague or
conclusory manner. See Garrison v. Colvin, 759 F.3d
995, 1012-13 (9th Cir. 2014) (citing Nguyen v.
Chater, 100 F.3d 1462, 1464 (9th Cir. 1996));
Embrey, 849 F.2d at 421-22. As the Ninth Circuit has
To say that medical opinions are not supported by sufficient
objective findings or are contrary to the preponderant
conclusions mandated by the objective findings does not
achieve the level of specificity our prior cases have
required, even when the objective factors are listed
seriatim. The ALJ must do more than offer his
conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors', are correct.
Embrey, 849 F.2d at 421 (emphasis added).
case, the ALJ failed to explain how any of the activities
reported by the Plaintiff undermine Dr. Carter's opinion.
See AR 729. For example, the ALJ did not explain how
Plaintiff “attending a business class and preparing to
start his own business” undermine Dr. Carter's
opinion that Plaintiff is markedly limited in his ability to
respond to usual work situations and changes in a work
setting. See AR 729. The ALJ likewise failed to
explain how Plaintiff's ability to express himself in
treatment encounters or be independent in his daily
activities undermine Dr. Carter's opined marked
limitations. See AR 729. The ALJ “merely
states” these facts “point toward an adverse
conclusion” yet “makes no effort to relate any of
these” facts to “the specific medical opinions
and findings he rejects.” Embrey, 849 F.2d at
421. Thus, the ALJ failed to provide a specific, legitimate
reason, to discount the weight assigned to Dr. Carter's
opinion. See Brown-Hunter v. Colvin, 806 F.3d 487,
492 (9th Cir. 2015) (“the agency [must] set forth the
reasoning behind its decisions in a way that allows for
the ALJ's conclusory reasoning, the Court finds the ALJ
failed to provide any specific, legitimate reason, supported
by substantial evidence in the record, to discount ...