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Sabah Y. v. Commissioner of Social Security

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

July 17, 2019

SABAH Y., Plaintiff,


          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. 2.

         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 for discounting the opinion of examining psychologist Dr. Widlan. Had the ALJ properly considered this opinion, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore harmful, 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 July 15, 2014, Plaintiff filed an application for SSI, alleging a disability onset date of June 16, 2012. See Dkt. 9, Administrative Record (“AR”) 22, 200-06. Plaintiff's application was denied initially and on reconsideration. AR 99-107, 111-17. ALJ Stephanie Martz held a hearing on November 1, 2016. AR 47-69. In a decision dated January 13, 2017, the ALJ determined Plaintiff to not be disabled. AR 19-32. Plaintiff requested a review of his case by the Social Security Appeals Council (“AC”) on January 23, 2017. AR 194. On February 7, 2018, the AC granted Plaintiff's request for review, and stated that it planned to find him disabled as of January 13, 2017, the date of the ALJ's decision. AR 195-96.

         The AC adopted the ALJ's findings for the period before the date of the ALJ's decision but found that based on vocational factors including Plaintiff's age, he was disabled as of January 13, 2017. AR 197. The AC issued a partially favorable decision on September 6, 2018. AR 1-8. The AC adopted the ALJ's findings with respect to steps one through five of the sequential evaluation. AR 5-6. However, the AC found that on the date of the hearing decision, Plaintiff was within three months of attaining age 45 and a change in age category from that of a “younger individual age 18-44” to that of a “younger individual age 45-49.” AR 6. The AC noted that it in making determinations regarding disability, the AC does not apply the claimant's age “mechanically”, and that if Plaintiff had attained age 45, he would be found disabled pursuant to Medical-Vocational Rule 201.17. AR 6. The AC found that Plaintiff's age should not be applied mechanically given Plaintiff's additional vocational impediments, including a lack of prior work activity, an inability to communicate in English, and non-exertional limitations. AR 6. Applying the borderline age policy, the AC found that Plaintiff qualified as a younger individual age 45-49 as of the hearing decision date, and was therefore disabled as of January 13, 2017 pursuant to Rule 201.17. AR 7.

         The Appeals Council decision of September 6, 2018 is the final agency decision subject to judicial review. See 20 C.F.R. § 416.1481. (“The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised.”); See e.g. Griffin v. Berryhill, No. C17-308-RAJ, 2017 WL 5668040 (W.D. Washington, Nov. 27, 2017) (citing Sims v. Apfel, 530 U.S. 103, 106-7 (2000) (“SSA regulations provide that, if the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision”).

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to properly assess the opinion of consultative psychological examiner David Widlan, Ph.D. Dkt. 11, pp. 4-7. Plaintiff requests the Court remand his claims for an award of benefits. Id. at 8.


         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 argues that the ALJ failed to properly consider an opinion from examining psychologist Dr. Widlan. Dkt. 11, pp. 4-7.

         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 ...

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