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Joseph W. G. v. Commissioner of Social Security

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

April 11, 2019

JOSEPH W. G., Plaintiff,



         Plaintiff 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.

         After 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.


         This 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.

         On 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.

         On June 13, 2017, ALJ S. Andrew Grace held the present hearing. AR 744-82. On March 21, 2018, the ALJ[1] determined Plaintiff to be not disabled. AR 710-43. The ALJ's March 21, 2018 decision is the final decision of the Commissioner.

         In 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.


         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 properly considered the medical opinion evidence.

         Plaintiff 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.

         In 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)).

         “Other 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.

         A. Dr. Carter

         Plaintiff argues the ALJ failed to properly assess medical opinion evidence from examining physician, Dr. Carter. Dkt. 13, pp. 10-13.

         Dr. 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.

         The ALJ 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.

         AR 729 (citations omitted).

         An ALJ 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 stated:

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).

         In this 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 meaningful review”).

         Due to 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 ...

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