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Angela B. v. Commissioner of Social Security

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

August 26, 2019

ANGELA B., Plaintiff,


          David W. Christel, United States Magistrate Judge

         Noting Dated: September 13, 2019 The District Court has referred this action, filed pursuant to 42 U.S.C. § 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 (“SSI”) and disability insurance benefits (“DIB”).

         After 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.


         On 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.[1] 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.

         In 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.


         Pursuant 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 Cir. 1999)).


         I. Whether the ALJ properly assessed the opinion evidence.

         Plaintiff contests the ALJ's treatment of the opinion evidence from Dr. Khan, Ms. Milasich, Dr. Song, and Dr. Barnes. Dkt. 10, pp. 9-15.

         In 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)).

         “Other 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.

         A. Dr. Khan

         Plaintiff argues the ALJ failed to provide specific, legitimate reasons to reject the opinion evidence from treating physician Dr. Khan. Dkt. 10, pp. 13-15.

         Dr. 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).

         In a 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.

         In 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 ...

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