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Jimmy L. v. Commissioner of Social Security

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

June 18, 2019

JIMMY L., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, 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 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.

         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 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.

         FACTUAL AND PROCEDURAL HISTORY

         On June 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.

         On May 29, 2018, ALJ Kimberly Boyce held the second hearing. AR 659-94. In a decision dated September 20, 2018, the ALJ[1] 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.

         In 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.

         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 challenges the ALJ's assessment of medical opinion evidence from Drs. Kwok, Finkleman, and Settle. Dkt. 12, 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)).

         A. Dr. Kwock

         Plaintiff 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.

         Dr. 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.

         The ALJ 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 above.

AR 647 (citations omitted) (numbering added).

         Defendant 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.

         Here, 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 ...

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