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Dale J. v. Commissioner of Social Security

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

August 7, 2019

DALE J., Plaintiff,


          Theresa L. Fricke United States Magistrate Judge

         Dale J. has brought this matter for judicial review of defendant's denial of his application for supplemental security income (SSI) benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons below, the undersigned reverses defendant's decision to deny benefits and remands for further administrative proceedings.

         ISSUES FOR REVEW[1]

         1. Did the ALJ give adequate reasons to reject opinions from two examining psychologists?

         2. Did the ALJ give adequate reasons to discount plaintiff's testimony?


         Plaintiff filed an application for SSI in April 2014, alleging he became disabled as of August 5, 2008. Dkt. 8, Administrative Record (AR) 15. His application was denied at the initial and reconsideration levels of administrative review. Id. After a hearing, an administrative law judge (ALJ) issued an unfavorable written decision on August 16, 2017. AR 15-31; see AR 38-88 (hearing transcript). The ALJ performed the five-step sequential analysis. AR 15-31. He determined that there were jobs existing in significant numbers in the national economy that plaintiff could perform, and therefore that plaintiff was not disabled. AR 30-31. Plaintiff filed a complaint with this Court, seeking reversal and remand for an award of benefits.


         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This requires “more than a mere scintilla, ” though “less than a preponderance” of the evidence. Id.; Trevizo v. Berryhill, 871 F.3d 664, 674-75 (9th Cir. 2017).

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. The Court considers only the reasons the ALJ identified. Id.

         “If the evidence admits of more than one rational interpretation, ” the Court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That is, “‘[w]here there is conflicting evidence sufficient to support either outcome, '” the Court “‘must affirm the decision actually made.'” Id. (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).


         The Commissioner uses a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The Commissioner assesses a claimant's residual functional capacity (RFC) to determine-at step four-whether the claimant can perform past relevant work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). If the claimant cannot, then the ALJ reviews-at step five-whether the claimant can adjust to other work. Id. The Commissioner has the burden of proof at step five. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The Commissioner can meet this burden by showing that a significant number of jobs that the claimant can perform exist in the national economy. Id.; 20 C.F.R. §§ 404.1520(e), 416.920(e). A. Medical Opinion Evidence Plaintiff challenges the ALJ's decision, in assessing plaintiff's RFC, to discount opinions from two examining psychologists-Holly Petaja, Ph.D., and Ellen Walker, Ph.D.-about limitations from his mental-health conditions. Because the ALJ failed to give adequate and supported reasons to discount either of those psychologists' opinions, the Court will reverse.

         1. Examining Psychologist Holly Petaja, Ph.D.

         Dr. Petaja evaluated plaintiff in February 2014. AR 318. She conducted a clinical interview and a mental status exam. AR 318-22. She diagnosed plaintiff with panic disorder, generalized anxiety disorder, bipolar disorder, and substance abuse disorders in remission. AR 319. She opined that plaintiff would be moderately limited in several basic work activities and markedly limited in his ability to communicate and perform effectively in a work setting, maintain appropriate behavior in a work setting, and complete a normal workday and work week without interruption from his psychological symptoms. AR 320.

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). Even when a treating or examining physician's opinion is contradicted, an ALJ may only reject that opinion “by providing specific and legitimate reasons that are supported by substantial evidence.” Id.

         Here, the ALJ rejected Dr. Petaja's opinion. AR 28. The marked limitations Dr. Petaja found were contradicted by the opinions of state agency psychological consultants. See AR 97-98, 109-10, 320. Accordingly, the ALJ was required to give specific, legitimate, and supported reasons to discount those opinions. See Trevizo, 871 F.3d at 675. The ALJ did not do so.

         The ALJ rejected Dr. Petaja's opinion because, first, he found that Dr. Petaja “had little basis on which to form an opinion, ” having examined plaintiff only once and not having reviewed treatment notes or other records, which include “evidence of secondary gain.” AR 28. (As the ALJ explained elsewhere, the record contains evidence that some providers found plaintiff's statements unreliable and motivated by a desire for shelter and drugs. AR 22-26.) The frequency of a doctor's examination and the amount and types of evidence the doctor considers are legitimate considerations in weighing the doctor's opinion. 20 C.F.R. § 416.927(c). But an ALJ may not reject an examining opinion solely because it was based on one visit and the doctor did not review other records. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (ALJ must give specific and legitimate reasons to reject examining doctor's opinion that is contradicted). Dr. Petaja performed a psychological evaluation that included a clinical interview and mental status examination. AR 318-22. The ALJ was required to consider the opinion Dr. Petaja reached based on such objective measures. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017).

         The ALJ rejected Dr. Petaja's opinion because, second, he found Dr. Petaja “did not provide [a] specific rationale to subs-tantiate … each limitation in her opinion.” AR 28. An ALJ “need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see also 20 C.F.R. § 416.927(c)(3) (“The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.”). But the Commissioner provides no authority-and the Court is aware of none-that would permit an ALJ to reject an examining-source opinion because it does not articulate to the ALJ's satisfaction a separate basis for each limitation the source found.

         To the extent the ALJ found that Dr. Petaja's opinion was brief, conclusory, and unsupported, substantial evidence does not support that finding. Dr. Petaja's evaluation explains the limitations she found: She noted that plaintiff “is experiencing symptoms of depression, ” which she described. AR 319. She found that “[t]hese symptoms are present more days than not for periods of longer than two weeks and interfere with his social and occupational functioning.” Id. She also listed plaintiff's specific anxiety symptoms and panic attacks and found that these “interfere with his social and occupational functioning.” Id. Noting the results of a mental status examination, Dr. Petaja observed that plaintiff's mood was dysthymic and ...

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