United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
the second judicial review of Defendant's determination
that Plaintiff is not disabled. 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. As discussed below, the undersigned agrees
that the ALJ erred; the ALJ's decision is reversed and
remanded for an award of benefits.
ISSUES FOR REVEW
the ALJ err in evaluating the opinions of Jeffrey Patterson,
M.D., Julian Arroyo, M.D., and William Morris, M.D.?
the ALJ rely on an impermissible “sit and squirm”
test when evaluating Plaintiff's symptoms?
the ALJ err in evaluating Activity Prescription Forms issued
by the Washington State Department of Labor and Industries?
the ALJ err in finding Plaintiff capable of performing her
past relevant work?
the ALJ adequately account for Plaintiff's impairments
when assessing the RFC?
FACTUAL AND PROCEDURAL HISTORY
November 5, 2010, Plaintiff applied for disability insurance
benefits, alleging a disability onset date of October 30,
2008. AR 25, 151-57, 816. Plaintiff last met the insured
status requirements of the Social Security Act on December
31, 2010, making the period between Plaintiff's alleged
onset date and her date last insured the relevant period. AR
first hearing was held before Administrative Law Judge
(“ALJ”) Cynthia D. Rosa on May 8, 2012, after
Plaintiff appealed the denial of benefits. AR 43-80, AR 25,
103-05, 107-08, 816. In a decision dated May 25, 2012, ALJ
Rosa determined Plaintiff to be not disabled. AR 22-37,
867-82. The Social Security Appeals Council denied
Plaintiff's request for review on October 18, 2013. AR
appealed to the United States District Court for the Western
District of Washington, which affirmed the ALJ's decision
on September 9, 2014. AR 894-900, 904. Plaintiff appealed the
District Court's ruling to the United States Court of
Appeals for the Ninth Circuit on November 6, 2014. AR 904.
30, 2015, Plaintiff and the Commissioner of Social Security
filed a motion for an order of remand and issuance of a
mandate based on the parties' stipulation. AR 913-18. The
motion provided that on remand, the Appeals Council should
instruct the ALJ to:
give [Plaintiff] an opportunity for a new hearing; reevaluate
the medical opinion evidence, including the State agency
opinions of Dr. Stevick and Dr. Ignacia, as well as the
conclusions of Dr. Arroyo; reconsider the RFC finding; issue
a step four finding in compliance with SSR 82-62, including a
finding of fact regarding how the claimant's past work
was actually performed, consideration of the claimant's
own statements of how she performed her past work, and
consideration of the Washington State Department of Labor and
Industry report on the claimant's former job; and obtain
supplemental testimony from a vocational expert.
Court of Appeals granted the motion and issued a formal
mandate pursuant to Rule 41(a) of the Federal Rules of
Appellate Procedure. AR 911, 912. On August 31, 2015, the
Appeals Council vacated the ALJ's determination; the
Council remanded for further administrative proceedings
consistent with the instructions contained in the stipulated
remand order. AR 919-24. The Appeals Council also ordered the
ALJ to correctly attribute a medical opinion to Jeffery
Patterson, M.D. rather than Julian Arroyo, M.D. AR 922.
August 31, 2016, ALJ Cynthia D. Rosa held another hearing. AR
853-66. On February 22, 2017, the ALJ again found that
Plaintiff was not disabled between her alleged onset date and
her date last insured. AR 813-34. On March 23, 2017, after
the Appeals Council declined to assume jurisdiction, AR
806-12, the ALJ's second decision became the final
decision of the Commissioner. Plaintiff appealed to this
Court and seeks a finding that Plaintiff was disabled. Dkt.
STANDARD OF REVIEW
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.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576).
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. Only the reasons identified by the ALJ are
considered in the scope of the Court's review.
Commissioner uses a five-step sequential evaluation process
to determine if a claimant is disabled. 20 C.F.R. §
404.1520. The ALJ assesses the claimant's RFC to
determine, at step four, whether the plaintiff can perform
past relevant work, and if necessary, at step five to
determine whether the plaintiff can adjust to other work.
Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir.
2013). The ALJ has the burden of proof at step five to show
that a significant number of jobs that the claimant can
perform exist in the national economy. Tackett v.
Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R.
§ 404.1520(e), A. Whether the ALJ properly evaluated
the medical opinion evidence
maintains the ALJ failed to properly evaluate opinion
evidence from Dr. Patterson (the examining physician who
evaluated Plaintiff for the Washington State Department of
Labor and Industries), Dr. Arroyo (Plaintiff's treating
specialist physician for her neck condition), and Dr. Morris
(Plaintiff's treating ...