United States District Court, W.D. Washington, Tacoma
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
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. 4.
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 discount medical opinion evidence
from Dr. John Kwock, M.D., and Dr. Lowell Finkleman, M.D. Had
the ALJ properly considered this medical opinion 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.
AND PROCEDURAL HISTORY
20, 2013, Plaintiff filed an application for SSI, alleging
disability as of October 3, 2012. See Dkt. 10,
Administrative Record (“AR”) 633. The application
was denied upon initial administrative review and on
reconsideration. See AR 633. ALJ Kelly Wilson held
the first hearing on December 3, 2014. AR 33-66. In a
decision dated April 21, 2015, ALJ Wilson found Plaintiff to
be not disabled. AR 9-30. After the Appeals Council denied
Plaintiff's request for review of the ALJ's decision,
Plaintiff appealed ALJ Wilson'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, 733-44. Pursuant to the
Court's Order, the Appeals Council vacated ALJ
Wilson's decision and remanded Plaintiff's claim to
the ALJ “for further proceedings consistent with
the” Order. AR 748.
29, 2018, ALJ Kimberly Boyce held the second hearing. AR
659-94. In a decision dated September 20, 2018, the
determined Plaintiff to be not disabled. AR 630-58. The
ALJ's September 20, 2018 decision is the final decision
of the Commissioner, which Plaintiff now appeals.
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by failing to: (1) provide specific, legitimate reasons
to reject medical opinion evidence from Dr. Kwock, Dr.
Finkleman, and Dr. Charles Settle, M.D.; and (2) provide
legally sufficient reasons to reject Plaintiff's
subjective symptom testimony. Dkt. 12, pp. 3-18. Plaintiff
requests the Court remand this matter for an award of
benefits. Id. at p. 18.
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
challenges the ALJ's assessment of medical opinion
evidence from Drs. Kwok, Finkleman, and Settle. Dkt. 12, pp.
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)).
argues the ALJ erred in rejecting Dr. Kwock's opinion
that Plaintiff is limited to sitting for up to four hours in
an eight-hour workday. Dkt. 3-11.
Kwock, who reviewed the medical evidence in this matter,
testified at the second hearing. See AR 664-74. Dr.
Kwock opined Plaintiff can perform work at the sedentary
exertional level and can lift and carry up to 10 pounds on an
occasional basis but can never lift or carry more than 11
pounds. AR 669. Further, Dr. Kwock determined Plaintiff can
balance frequently; climb ramps, stoop, and kneel
occasionally; and can never climb ladders or scaffolds,
crawl, work in unprotected heights, or work in proximity to
moving machinery. AR 669-70. Dr. Kwock also opined Plaintiff
can walk for up to two hours in an eight-hour workday and sit
for up to four hours in an eight-hour workday. AR 669.
gave “significant weight” to Dr. Kwock's
opinion, “with some exceptions.” AR 647. In
particular, the ALJ rejected Dr. Kwock's opinion that
Plaintiff can sit for four hours because:
(1) [Dr. Kwock] did not elaborate on why the
claimant would not be able to sit for a total of six hours.
(2) Based on the examination and opinion of
Dr. Gaffield, I find the claimant is capable of sitting for
six hours in an eight hour day. (3) I also
note that while Dr. Kwock cited Dr. Gaffield's physical
examination findings, he did not address the indications of
exaggerated symptoms during this evaluation as discussed
above. (4) Instead, Dr. Kwock suggested Dr.
Gaffield found 4/5 bilateral weakness in the lower
extremities. However, according to Dr. Gaffield's
examination records this deficit was related to the
claimant's complaints of back pain. (5)
To the extent Dr. Kwock's limitations exceed those
described in the [RFC] they are inconsistent with
observations the claimant routinely appeared in no acute,
apparent, or obvious stress, presented with all normal
findings in his constitutional examination, or appeared
“well” or “healthy” as discussed
AR 647 (citations omitted) (numbering added).
contends the ALJ's first, third, and fifth reasons for
rejecting Dr. Kwock's opinion are legally sufficient.
Dkt. 13, pp. 4-6. First, the ALJ rejected Dr. Kwock's
opinion that Plaintiff can sit for four hours in an
eight-hour workday because she found Dr. Kwock “did not
elaborate on why the claimant would not be able to sit for a
total of six hours.” AR 647. “[A]n ALJ need not
accept the opinion of a doctor if that opinion is brief,
conclusory, and inadequately supported by clinical
findings.” Bayliss, 427 F.3d at 1216 (citing
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
2001)). But an ALJ's findings must be supported by
substantial evidence in the record as a whole. Id.
at 1214 n.1.
the record shows that, contrary to the ALJ's finding, Dr.
Kwock provided an explanation as to how he formed his
opinion. Specifically, after the ALJ asked Dr. Kwock what he
could cite “to support the limitations” he
opined, Dr. Kwock referenced several studies of
Plaintiff's spine and physical examinations of Plaintiff
as support for his opinion. See AR 670-72. After
referencing these studies and examinations, Dr. Kwock
summarized the bases for his opinion:
I think for those reasons, the record is mixed enough that I
think in this particular case I had in my initial thinking
that leans towards the conservative side for this individual
simply because of the changes still in the objective
radiological studies of both cervical and lumbar spine, and
the somewhat conflicting ...