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James P. v. Commissioner of Social Security

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

August 1, 2019

JAMES P., 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 she failed to provide specific and legitimate reasons, supported by substantial evidence, to discount medical opinion evidence from Dr. Wayne Hwang, M.D.; Dr. Myrna Palasi, M.D.; Dr. Margot Schwartz, M.D.; and Dr. Tasmyn Bowes, Psy.D. Had the ALJ properly considered these medical opinions, 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 May 22, 2015, Plaintiff filed applications for DIB and SSI, alleging disability as of June 30, 2007. See Dkt. 8, Administrative Record (“AR”) 16. Plaintiff subsequently amended the alleged onset date to May 22, 2015. See AR 16. The applications were denied upon initial administrative review and on reconsideration. See AR 16. ALJ Stephanie Martz held a hearing on December 5, 2017. AR 36-67. In a decision dated February 7, 2018, the ALJ determined Plaintiff to be not disabled. AR 13-35. 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 1-7; 20 C.F.R. §§ 404.981, 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred: (1) by failing to provide legally sufficient reasons to discount opinion evidence from Drs. Hwang, Palasi, Schwartz, and Bowes, and Ms. Meagan Collins, LICSWA; and (2) in her assessment of Plaintiff's depression at Step Two of the sequential evaluation process. Dkt. 10, pp. 2-17. Plaintiff requests the Court remand this matter for an immediate award of benefits. Id. at p. 18.


         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 opinion evidence.

         Plaintiff contends the ALJ failed to properly reject opinion evidence from Drs. Hwang, Palasi, Schwartz, and Bowes, and Ms. Collins. Dkt. 10, pp. 2-14.

         In assessing acceptable medical sources, 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); see also Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 2010). 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 51

         A. Dr. Hwang

Plaintiff challenges the ALJ's assessment of the opinion evidence from Plaintiff's treating cardiologist, Dr. Hwang. Dkt. 10, pp. 12-13.

         Dr. Hwang completed a medical assessment of Plaintiff's ability to do physical work-related activities on December 15, 2017. AR 1155-58. On the opinion form, Dr. Hwang noted his treatment history with Plaintiff included treating Plaintiff after his heart attack and managing his “ongoing chest pains.” AR 1155. Dr. Hwang opined Plaintiff is limited to performing sedentary work. AR 1155. Dr. Hwang noted he based this opinion on Plaintiff's “ongoing” symptoms despite medical treatment for chest pains. AR 1155. Dr. Hwang determined Plaintiff can stand and walk for 2-4 hours, and sit for less than 4 hours, in an 8-hour workday. AR 1156. Dr. Hwang found Plaintiff limited in his ability to push and pull in his lower extremities due to neuropathy in Plaintiff's feet. AR 1156. Additionally, Dr. Hwang opined Plaintiff can occasionally climb, balance, stoop, crouch, kneel, and crawl because of ongoing chest pains. See AR 1157. Dr. Hwang determined Plaintiff has environmental restrictions caused by his impairments, including restrictions in his ability to tolerate moving machinery, temperature extremes, dust, noise, humidity, and vibrations. AR 1157. Finally, Dr. Hwang noted that while he found it “almost impossible” to answer whether Plaintiff could sustain full-time employment, he believed Plaintiff “would have unpredictable reliability” based on his conditions, such as “sudden unexplained and unexpected chest pains[.]” AR 1158.

         The ALJ assigned “little weight” to Dr. Hwang's opinion because:

(1) While [Dr. Hwang] opines the claimant is limited to sedentary work, his last treatment note from early 2017 showed that he assessed the claimant with only mild cardiac symptoms. (2) Dr. Hwang's records show no evidence of neuropathy (3) and do not support the drastic limitations he notes in this assessment.

AR 27 (numbering added).

         First, the ALJ rejected Dr. Hwang's assessment because she found Dr. Hwang's last treatment note showed he assessed Plaintiff “with only mild cardiac symptoms.” AR 27. An ALJ may reject an opinion that is “inadequately supported by clinical findings.” Bayliss, 427 F.3d at 1216 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). Regardless, the ALJ's reasons for discounting the doctor must be supported by substantial evidence in the record. See Bayliss, 427 F.3d at 1214 n.1, 1216.

         In this case, though the ALJ failed to cite or identify the date of Dr. Hwang's “last treatment note from early 2017, ” the parties suggest - and the Court agrees - Dr. Hwang's last treatment notes are from January 27, 2017. See AR 1048-52; Dkt. 10, pp. 12-13; Dkt. 11, pp. 6-7. In this treatment note, Dr. Hwang noted Plaintiff continued to experience chest pain, which Plaintiff “describe[d] as discomfort in general, tightness, ” and as occurring “with exertion.” AR 1048. Dr. Hwang noted the chest pain occurred “even with mild activities” and Plaintiff expressed that the chest pain was “lifestyle limiting.” AR 1048. After a physical examination of Plaintiff, Dr. Hwang described data from prior stress tests and echocardiograms of Plaintiff's heart. See AR 1051. Dr. Hwang noted, in part, that Plaintiff's last stress test from June 2016 indicated “[i]ntermediate risk, ” but infarct/ischemia[1] had “escalat[ed] since then.” AR 1051.

         Notably, in contrast to the ALJ's finding, this treatment note does not show Dr. Hwang assessed Plaintiff with “mild” cardiac symptoms. See AR 27, 1048-51. Rather, Dr. Hwang remarked Plaintiff was experiencing chest pain on exertion, and some aspects of Plaintiff's heart had escalated since 2016. See AR 1051. As Dr. Hwang did not, as the ALJ found, assess Plaintiff with only “mild” cardiac symptoms, the Court finds this reason from the ALJ not supported by substantial evidence in the record.

         Defendant, citing information from the New York Heart Association (“NYHA”), argues the ALJ properly found Plaintiff's cardiac symptoms were mild because Dr. Hwang assessed his cardiac impairment as “Class II” pursuant to NYHA criteria. Dkt. 11, pp. 6-7 (citing AR 1051). Yet the ALJ did not rely on or reference the NYHA criteria in finding Dr. Hwang assessed Plaintiff with mild cardiac symptoms. See AR 27. The Court cannot “affirm the decision of an agency on a ground the agency did not invoke in making its decision.” Stout v. Comm'r of Soc. Sec. Admin, 454 F.3d 1050, 1054 (9th Cir. 2006) (internal quotation marks and citation omitted). “Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (emphasis in original) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)) (other citation omitted). Because the ALJ did not rely on NYHA criteria in making her finding, Defendant's post hoc argument is without merit. The Court concludes the ALJ's first reason for rejecting Dr. Hwang's assessment is invalid.

         Second, the ALJ discounted Dr. Hwang's opinion because his treatment records “show no evidence of neuropathy[.]” AR 27. As stated above, an ALJ need not accept a medical opinion that is unsupported by clinical findings. Bayliss, 427 F.3d at 1216 (citing Tonapetyan, 242 F.3d at 1149). But an ALJ cannot reject a medical opinion for lacking support where the record contains supporting treatment notes. See Garrison v. Colvin, 759 F.3d 995, 1014 n. 17 (9th Cir. 2014); see also Esparza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. 2015). In this case, Dr. Hwang is one of Plaintiff's treating physicians and the record contains treatment notes and objective testing from the clinic where Dr. Hwang practices. See, e.g., AR 629-870, 897-953, 1001-82. These treatment notes indicate Plaintiff experienced foot pain and numbness, and that providers at the clinic noted the symptoms could be due to neuropathy. See, e.g., AR 1026-27 (“he is limited to walking 4 to 8 blocks before his feet go numb”; “[h]e has some neuropathic symptoms”), 1036-37 (same), 1041 (noting diagnoses of “[p]eripheral neuropathy” and right foot pain); see also AR 734, 929, 992-93, 995, 1003, 1007, 1012, 1016, 1017, 1022, 1064. Considering the multiple treatment notes and observations from other providers at Dr. Hwang's clinic about foot pain, foot numbness, and neuropathy, the ALJ's finding that Dr. Hwang's records show “no evidence” of neuropathy is not supported by substantial evidence. See Garrison, 759 F.3d at 1013 (a treating physician's opinion cannot be rejected for lacking support if the opinion reflects and is consistent with treatment notes in the record).

         Additionally, the Court notes Dr. Hwang only cited Plaintiff's neuropathy as causing the opined pushing and pulling limitations. See AR 1156. For the remainder of his opined limitations, including his opinion that Plaintiff is limited to sedentary work, Dr. Hwang found these limitations supported by Plaintiff's “ongoing” symptoms related to his “chest pains.” See AR 1155. The ALJ did not explain how Dr. Hwang's records allegedly lacking “evidence of neuropathy” undermines his opinion about the limitations he found supported by Plaintiff's chest pains. See AR 27; Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citation omitted) (“the ALJ must provide some reasoning in order for us to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence”). Thus, the ALJ's second reason for rejecting Dr. Hwang's opinion is not legitimate and lacks support from substantial evidence in the record.

         Third, the ALJ determined Dr. Hwang's records “do not support the drastic limitations he notes in this assessment.” AR 27. An ALJ, however, cannot reject a physician's opinion in a vague or conclusory manner. See Garrison, 759 F.3d at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)); Embrey, 849 F.2d at 421-22. Instead, the ALJ must state her interpretations and explain why they, rather than the physician's interpretations, are correct. See Embrey, 849 F.2d at 421-22.

         Here, the ALJ summarily stated Dr. Hwang's records do not support “the drastic limitations” he opined. See AR 27. But the ALJ failed to provide her interpretation of the evidence and explain how she found Dr. Hwang's records fail to support his limitations. Because the ALJ failed to explain why her interpretations, rather than Dr. Hwang's interpretations, are correct, this is not a specific, legitimate reason to reject Dr. Hwang's findings. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an ALJ's rejection of a physician's opinion on the ground that it was contrary to the record was “broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed”).

         For the above stated reasons, the ALJ failed to provide any specific, legitimate reason, supported by substantial evidence, to give Dr. Hwang's ...

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