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David S. v. Commissioner of Social Security

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

July 17, 2019

DAVID S., 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 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. 2.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to provide specific, legitimate reasons, supported by substantial evidence, to discount medical opinion evidence from Dr. Krueger and Dr. Clifford. Had the ALJ properly considered these medical opinions, 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.


         This case has a lengthy procedural history. On February 24, 2011, Plaintiff filed applications for DIB and SSI, alleging a disability onset date of September 1, 2007. See Dkt. 9, Administrative Record (“AR”) 13, 196-202, 203-08. Plaintiff later amended his alleged onset date to February 11, 2011. AR 13, 34. His applications were denied upon initial administrative review and on reconsideration. AR 13, 127-30, 131-35, 136-43. A hearing was held before ALJ Joanne E. Dantonio on August 8, 2012. AR 31-84. In a decision dated August 30, 2012, ALJ Dantonio determined Plaintiff to be not disabled. AR 10-26. The Social Security Appeals Council denied Plaintiff's request for review on December 19, 2013. AR 1-6.

         On January 22, 2014, Plaintiff filed new applications for DIB and SSI. AR 1021-26, 1027-33. Plaintiff's new applications were denied initially and upon reconsideration. AR 834-40, 841-49, 853-57, 858-63.

         On March 3, 2014, Plaintiff appealed ALJ Dantonio's August 30, 2012 decision to the United States District Court for the Western District of Washington (“Court”), which reversed and remanded the decision for further proceedings on October 21, 2014. AR 715-28. On January 26, 2015, the Appeals Council issued a remand order vacating ALJ Dantonio's decision and remanding the case for further proceedings consistent with the Court's order. AR 729-33. The Appeals Council also ordered the consolidation of Plaintiff's two pending applications for DIB and SSI. AR 731.

         ALJ Dantonio held a new hearing on February 17, 2016 and issued a revised, unfavorable decision on July 11, 2016. AR 522-83, 734-55. On August 15, 2016, Plaintiff requested Appeals Council review of ALJ Dantonio's decision. AR 965-72. On September 12, 2017, the Appeals Council issued an order remanding the case for additional proceedings. AR 764-70. ALJ Allen Erickson held a new hearing on April 24, 2018, at which Plaintiff requested a closed period of disability running from February 11, 2011 through August 1, 2015. AR 480, 584-628. In a decision dated July 5, 2018, ALJ Erickson determined Plaintiff to be not disabled. AR 477-494. The ALJ's July 5, 2018 decision is the final decision of the Commissioner.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to properly assess: (1) opinion evidence from Keith Krueger, Ph.D., Michael Brown, Ph.D., Erum Khaleeq, M.D., Rashpal Raj, PA-C, Alnoor Virji, M.D., and Thomas Clifford, Ph.D.; (2) Plaintiff's subjective allegations; and (3) the RFC and Step Five findings. Dkt. 13, pp. 3-16. Plaintiff requests the Court remand his claims for an award of benefits. Id. at 16-17.


         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 evaluated the medical opinion evidence.

         Plaintiff maintains the ALJ failed to properly consider opinion evidence from Dr. Krueger, Dr. Brown, Dr. Khaleeq, Mr. Raj, Dr. Virji, and Dr. Clifford. Dkt. 13, pp. 3-7, 9.

         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)).

         “Other medical source” testimony, which the Ninth Circuit treats as lay witness testimony, “is competent evidence an ALJ must take into account, ” unless the ALJ “expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Turner, 613 F.3d at 1224. In rejecting lay testimony, the ALJ need not cite the specific record as long as “arguably germane reasons” for dismissing the testimony are noted. Lewis, 236 F.3d at 512.

         A. Dr. Krueger

         Plaintiff argues that the ALJ failed to properly assess opinions from examining psychologist ...

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