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Jay K. v. Commissioner of Social Security

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

August 26, 2019

JAY K., Plaintiff,



         Plaintiff has brought this matter for judicial review of defendant's denial of his applications for disability insurance and supplemental security income 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. As discussed below, the undersigned agrees that the ALJ erred and the ALJ's decision is reversed and remanded for further administrative proceedings.


         1. Did the ALJ err in evaluating the opinions of Huong Lakin, D.O., Brent Packer, M.D., and Thomas Gritzka, M.D.?

         2. Did the ALJ err in evaluating Plaintiff's subjective allegations?

         3. Did the ALJ err in assessing Plaintiff's residual functional capacity (“RFC”)?


         On January 15, 2015, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging a disability onset date of July 31, 2014.[1] AR 145, 353-59, 360-65. Plaintiff's applications were denied upon initial administrative review and on reconsideration. AR 277-83, 286-90. A hearing was held before Administrative Law Judge (“ALJ”) James W. Sherry on September 15, 2016. AR 186-230. In a decision dated November 29, 2016, the ALJ determined Plaintiff was not disabled. AR 142-160. The Social Security Appeals Council denied Plaintiff's request for review on February 9, 2018. AR 1-7. The ALJ's decision of November 29, 2016 is the final decision of the Commissioner subject to judicial review. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff appealed to this Court and seeks an order remanding this case either for further administrative proceedings or an award of benefits. Dkt. 17, p. 12.


         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.'” 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).

         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. Only the reasons identified by the ALJ are considered in the scope of the Court's review. Id.


         The Commissioner uses a five-step sequential evaluation process to determine if a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 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), 416.920(e).

         A. Whether the ALJ properly evaluated the medical opinion evidence

         Plaintiff maintains the ALJ failed to properly evaluate opinion evidence from examining physicians Dr. Lakin, Dr. Packer, and Dr. Gritzka. Dkt. 17, pp. 4-11. Plaintiff argues that Dr. Packer's opinion supports Dr. Lakin's opinion concerning Plaintiff's stooping limitations, and that the ALJ has assessed an incomplete RFC by failing to specifically address the postural limitations assessed by both physicians. Dkt. 17, p. 10. Plaintiff argues that while Dr. Gritzka was not Plaintiff's treating physician, he was a board certified orthopedic surgeon who performed an in-depth review of the medical record and provided detailed explanations for his conclusions. Dkt 17, p. 7. Plaintiff also argues that Dr. Gritzka's opinion was broadly consistent with Dr. Lakin's. Dkt. 17, p. 8.

         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)).

         1. Dr. Lakin ...

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