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Matthew A. B v. Berryhill

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

April 15, 2019

MATTHEW A. B., 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 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. 5.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when she failed to provide specific, legitimate reasons, supported by substantial evidence, to reject medical opinion evidence from Dr. Jennifer Koch, Psy.D., and Dr. Terilee Wingate, Ph.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 Deputy Commissioner of Social Security for Operations (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On October 19, 2010, Plaintiff filed applications for SSI and DIB, alleging disability as of June 26, 2009. See Dkt. 8, Administrative Record (“AR”) 16. The claims were denied upon initial administrative review and on reconsideration. See AR 161. After holding a hearing, ALJ Mattie Harvine-Wood issued a decision on October 25, 2012, finding Plaintiff to be not disabled. AR 158-78. Plaintiff did not appeal ALJ Harvine-Wood's decision; thus, it is administratively final. See AR 16.

         On October 9, 2014, Plaintiff filed the present applications for SSI and DIB. See AR 16. Plaintiff alleges disability beginning October 26, 2012. AR 16. The claims were denied upon initial administrative review and on reconsideration. See AR 16. ALJ Marilyn S. Mauer held hearings on September 14, 2016 and November 28, 2016, at which she granted continuances to allow Plaintiff to obtain representation and submit additional medical evidence into the record. See AR 16, 111-21, 122-26. On April 5, 2017, the ALJ held another hearing. AR 127-57. In a decision dated May 23, 2017, the ALJ determined Plaintiff to be not disabled. AR 13-42. 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. Plaintiff now seeks review of ALJ Mauer's decision.[1]

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to properly: (1) consider medical opinion evidence from examining physicians Drs. Koch and Wingate, as well as opinion evidence from Dr. Brett C. Trowbridge, Ph.D., Dr. Tasmyn Bowes, Psy.D., Dr. Shawn Kenderdine, Ph.D, and non-examining physicians Dr. Leslie Postovoit, Ph.D., and Dr. Gary L. Nelson, Ph.D.; (2) evaluate Plaintiff's subjective symptom testimony and two lay witness opinions; (3) apply the doctrine of res judicata pursuant to Acquiescence Ruling (“AR”) 97-4(9) and Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); and (4) determine the RFC and Step Five findings. See Dkt. 12.

         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 objects to the ALJ's assessment of medical opinion evidence from examining physicians Drs. Koch, Wingate, Trowbridge, Bowes, and Kenderdine, and non-examining physicians Drs. Postovoit and Nelson. Dkt. 12, pp. 5-9, 13.

         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)).

         A. Dr. Koch

         Plaintiff argues the ALJ failed to provide any specific, legitimate reason to reject Dr. Koch's medical opinion. Dkt. 12, pp. 7-9.

         On September 19, 2013, Dr. Koch conducted a psychological/psychiatric evaluation of Plaintiff. AR 588-601. Dr. Koch's evaluation included a record review, clinical interview, mental status examination, Beck Anxiety Inventory, and Beck Depression Inventory-II. See AR 588-601. In her clinical findings, Dr. Koch found Plaintiff has depression, anxiety, and post-traumatic stress disorder. AR 590. Dr. Koch wrote that she based these findings on her observations of Plaintiff's flat affect, nervousness, and poor eye contact, as well as Plaintiff's reports, including reports of low self-esteem, low motivation, hypersomnia, worrying, and avoidance. AR 590.

         Dr. Koch opined Plaintiff has moderate limitations in the ability to: communicate and perform effectively in a work setting; maintain appropriate behavior in a work setting; and set realistic goals and plan independently. AR 591. Dr. Koch also found Plaintiff markedly limited in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, indicating “a very significant limitation” in this area. AR 591.

         The ALJ assigned “limited weight” to Dr. Koch's opinion for three reason: (1) Dr. Koch is not a treating source; (2) the evaluation was “conducted in aid of [Plaintiff's] application for state benefits such that it is . . . unclear whether the claimant's presentation at the time . . . was truly representative of his day-to-day functioning”; and (3) Dr. Koch appeared to “overstate[] the functional effects of [Plaintiff's] symptoms” given the results of Dr. Koch's evaluation. AR 30.

         First, the ALJ gave limited weight to Dr. Koch's opinion because Dr. Koch is not a treating source. AR 30. An examining physician, by definition, does not have a treating relationship with a claimant and usually only examines the claimant one time. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). In general, an ALJ may give more weight to a treating physician than a non-treating physician. Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). “When considering an examining physician's opinion . . . it is the quality, not the quantity of the examination that is important. Discrediting an opinion because the examining doctor only saw claimant one time would effectively discredit most, if not all, examining doctor opinions.” Yeakey v. Colvin, 2014 WL 3767410, at *6 (W.D. Wash. July 31, 2014). Thus, the ALJ's decision to discount Dr. Koch's opinion simply because she is not a treating source is not a specific and legitimate reason to discount this opinion. See Lester, 81 F.3d at 830 (an ALJ must give specific and legitimate reasons, supported by substantial evidence, to reject an examining physician's opinion).

         Second, the ALJ discounted Dr. Koch's opinion because Dr. Koch conducted the evaluation in aid of Plaintiff's application for state benefits such that it was “unclear” whether the evaluation truly represented Plaintiff's “day-to-day functioning.” AR 30. An ALJ cannot reject a medical opinion based on the purpose for which it was obtained. See Lester, 81 F.3d at 832 (“[t]he purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them”); see also Reddick, 157 F.3d at 726-727 (rejecting an ALJ's assertion that a physician was biased in favor of a claimant where “nothing in the record” showed the physician lacked objectivity). Therefore, to the extent the ALJ rejected Dr. Koch's opinion ...


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