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
has brought this matter for judicial review of
defendant's denial of his applications for disability
insurance and supplemental security income benefits.
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.
ISSUES FOR REVEW
the ALJ err in evaluating the opinions of Huong Lakin, D.O.,
Brent Packer, M.D., and Thomas Gritzka, M.D.?
the ALJ err in evaluating Plaintiff's subjective
the ALJ err in assessing Plaintiff's residual functional
FACTUAL AND PROCEDURAL HISTORY
January 15, 2015, Plaintiff filed applications for disability
insurance benefits and supplemental security income, alleging
a disability onset date of July 31, 2014. 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,
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, 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).
Whether the ALJ properly evaluated the medical opinion
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.
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)).
Dr. Lakin ...