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Grove v. Commissioner of Social Security

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

June 4, 2019

GERALD 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 child's insurance benefits[1] and 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. 2.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in his consideration of an assessment from Dr. Edwin Hill, Ph.D. The ALJ also committed errors in his assessment of Plaintiff's subjective symptom testimony. Had the ALJ properly considered this evidence, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's errors are 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.


         On June 22, 2016, Plaintiff filed applications for child's insurance benefits and SSI. See Dkt. 8, Administrative Record (“AR”) 19. Plaintiff alleges disability as of August 29, 2009. See AR 15, 41. The applications were denied upon initial administrative review and on reconsideration. See AR 15. ALJ Allen G. Erickson held a hearing on March 22, 2018. AR 35-118. In a decision dated June 22, 2018, the ALJ determined Plaintiff to be not disabled. AR 12-33. 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 1-6; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to properly consider: (1) an assessment from Dr. Hill; (2) assessments from Plaintiff's vocational counselors; and (3) Plaintiff's subjective symptom testimony. See Dkt. 10, pp. 3-14.


         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 contends the ALJ failed to provide legally sufficient reasons to discount evidence from Dr. Hill, who completed neuropsychological evaluations of Plaintiff. Dkt. 10, pp. 3-8.

         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)).

         Dr. Hill performed neuropsychological evaluations of Plaintiff on March 24, 2016 and April 22, 2016, on which he based his written assessment. See AR 614-28.[2] Dr. Hill performed a mental status evaluation, Wechsler Adult Intelligence Scale-IV, and multiple other evaluations, including intellectual skills tests, auditory and visual information processing tests, and academic achievement tests. See AR 618-24. Dr. Hill stated Plaintiff “has significant difficulties with consistently and reliably maintaining his attention and concentration.” AR 615. Plaintiff “tends to be easily distractible” and “focuses best when working with simple, familiar, and highly structured material.” AR 615. Dr. Hill found Plaintiff's language-related memory and learning abilities “quite weak” and his short-term memory “easily overloaded” with respect to language-related information, but noted Plaintiff “learns much better through visual means[.]” AR 615. Additionally, Dr. Hill determined Plaintiff “has difficulties adapting to unexpected changes and is prone to perseverating in his thinking.” AR 615.

         Moreover, Dr. Hill opined Plaintiff “has some significant academic learning difficulties with very impaired reading speed, very impaired writing speed, and impaired spelling abilities.” AR 616. Plaintiff “is a slow learner who needs to be able to work at his own pace, ” and “is borderline impaired in his information processing speed.” AR 616. Rather than learning “in an academic classroom type” situation, Dr. Hill found Plaintiff “would learn much better in an apprentice style training program where he could receive direct supervision and corrective feedback in hands on learning situations, ” with one-on-one instruction. AR 616. Dr. Hill further stated Plaintiff's “most significant issues” regarding his ability to work in the competitive market are “psychiatric in nature.” AR 616. Dr. Hill noted Plaintiff “has chronic problems ...

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