United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. Christel, United States Magistrate Judge
Dated: September 13, 2019 The District Court has referred
this action, filed pursuant to 42 U.S.C. Â§ 405(g), to United
States Magistrate Judge David W. Christel. Plaintiff filed
this matter seeking judicial review of Defendant's denial
of her applications for supplemental security income (âSSIâ)
and disability insurance benefits (âDIBâ).
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) committed
harmful error by failing to provide legally sufficient
reasons to reject opinion evidence from Dr. Kamran Khan,
M.D., and Ms. Julie Milasich, O.T, and therefore, by failing
to properly determine Plaintiff's residual functional
capacity (“RFC”). Accordingly, the undersigned
recommends this matter be reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g) to the Commissioner
of the Social Security Administration for further proceedings
consistent with this Report and Recommendation.
AND PROCEDURAL HISTORY
March 23, 2015, Plaintiff filed applications for SSI and DIB,
alleging disability as of April 25, 2014. See Dkt.
8, Administrative Record (“AR”) 13. The
applications were denied upon initial administrative review
and on reconsideration. See AR 13. ALJ Larry Kennedy
held the first hearing in this matter on April 20, 2017. AR
77-121. The ALJ continued that hearing to be completed on a
future date because Plaintiff was unable to complete her
testimony. See AR 13, 117-20. On January 29, 2018,
the ALJ held the second hearing. AR 40-76. In a decision
dated March 12, 2018, the ALJ found that, considering
Plaintiff's prior applications for disability which were
administratively final, the relevant period for her current
applications begins September 15, 2014. See AR
13-14. The ALJ also determined Plaintiff to be not disabled.
AR 10-39. The Appeals Council denied Plaintiff's request
for review of the ALJ's decision, making the ALJ's
decision the final decision of the Commissioner. See
AR 1-6; 20 C.F.R. §§ 404.981, 416.1481.
Plaintiff's Opening Brief, Plaintiff maintains the ALJ
erred by failing to: (1) properly consider opinion evidence
from Dr. Khan, Ms. Milasich, Dr. Myung Song, D.O., and Dr.
Frank Barnes, M.D.; and (2) state specific, clear and
convincing reasons to reject Plaintiff's subjective
symptom testimony. See Dkt. 10.
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
Whether the ALJ properly assessed the opinion
contests the ALJ's treatment of the opinion evidence from
Dr. Khan, Ms. Milasich, Dr. Song, and Dr. Barnes. Dkt. 10,
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)).
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.
argues the ALJ failed to provide specific, legitimate reasons
to reject the opinion evidence from treating physician Dr.
Khan. Dkt. 10, pp. 13-15.
Khan rendered multiple opinions stating that, due to
Plaintiff's conditions, he believes Plaintiff is unable
to work. For instance, On April 29, 2014, Dr. Khan wrote that
it was his “medical opinion that [Plaintiff] should
remain out of work” for two weeks due to her
“current medical condition.” AR 774. Likewise, on
May 9, 2014, Dr. Khan wrote that it was his opinion Plaintiff
should remain out of work for one month “due to severe
depression.” AR 775. On August 4, 2015, Dr. Khan
determined it was his medical opinion that Plaintiff
“is unable to work” due to right-sided carpal
tunnel and “ongoing mental health issues”
including depression, anxiety, and post-traumatic stress
disorder (“PTSD”). AR 776; see also AR
644 (June 10, 2015 statement); AR 777 (March 4, 2016
statement); AR 1025 (July 10, 2017 statement).
more detailed evaluation form, completed on June 25, 2015,
Dr. Khan wrote that Plaintiff has diagnoses of depression,
anxiety, PTSD, low back pain, and bilateral carpal tunnel
syndrome. See AR 771. Dr. Khan remarked that these
diagnoses are supported by testing and lab reports, and
determined they limit Plaintiff's ability to bend, twist,
turn, walk, and sit for more than 10 minutes. AR 771. Dr.
Khan opined Plaintiff “needs unscheduled breaks”
of 30 minutes or more in four-hour shifts. AR 771. Further,
Dr. Khan determined Plaintiff is unable to participate in
work. AR 771. Dr. Khan wrote that Plaintiff has limitations
with lifting and carrying and he opined she is
“[s]everely limited, ” meaning she is
“[u]nable to lift at least 2 pounds or unable to stand
or walk.” AR 772. Moreover, Dr. Khan opined
Plaintiff's conditions impact her ability to access
services, such as that holding the phone gives her carpal
tunnel syndrome. AR 772. Dr. Khan also described the
treatment plan to address Plaintiff's conditions.
See AR 772-73.
another form completed on June 25, 2015, Dr. Khan determined
Plaintiff has degenerative disc disease with low back pain
and left hip pain, and as a result, Plaintiff has difficulty
sitting up right, standing, and walking for more than a few
minutes at a time. AR 901. Additionally, Dr. Khan opined
that, during a typical day, Plaintiff must recline for
two-to-four hours out of most eight-hour periods. AR 902. Dr.
Khan found that Plaintiff would require unscheduled breaks of
30 minutes or more in addition to the three breaks normally
provided by employers due to her low back pain and
radiculopathy. AR 902. Dr. Khan wrote that he believes
Plaintiff's complaints are reasonable/credible in light
of her diagnoses. AR 902. He also opined that, as of April
2014, Plaintiff would likely be absent 3 or more days per
month if she attempted sedentary work on a regular and
sustained basis. AR 902. Dr. Khan made this determination
based on Plaintiff's low back pain, right-sided
radiculopathy, carpal tunnel syndrome, depression, and
anxiety. AR 902. On March 6, 2017, Dr. Khan opined that
Plaintiff's medical conditions and ...