United States District Court, W.D. Washington, Tacoma
TONI J. H., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
W. Christel United States Magistrate Judge
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
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”).
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred when he
failed to properly consider the medical opinion evidence, in
particular the opinions of Mr. Sergey Kukhotsky and Dr. Dan
Phan, and Plaintiff's subjective symptom testimony. Had
the ALJ properly considered this evidence, the ALJ may have
found Plaintiff disabled or may have included additional
limitations in the residual functional capacity
(“RFC”) assessment. The ALJ's errors are,
therefore, not harmless, and 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
September 28, 2015, Plaintiff filed applications for DIB and
SSI, alleging disability as of August 1, 2013. See
Dkt. 10, Administrative Record (“AR”) 15. The
applications were denied on initial administrative review and
on reconsideration. AR 15. A hearing was held before ALJ M.J.
Adams on September 20, 2017. See AR 39-58. In a
decision dated March 5, 2018, the ALJ found Plaintiff not
disabled. See AR 15-32. Plaintiff's request for
review of the ALJ's decision was denied by the Appeals
Council, making the ALJ's decision the final decision of
the Commissioner. See AR 1-6; 20 C.F.R. §
404.981, § 416.1481.
Opening Brief, Plaintiff maintains the ALJ erred by failing
to properly consider (1) the medical opinion evidence and (2)
Plaintiff's subjective symptom testimony. Dkt.
14.Plaintiff requests a remand for an award of
benefits. Id. at p. 18.
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 erred by failing to properly consider the
medical opinion evidence.
contends the ALJ erred in his evaluation of medical opinions
completed by Mr. Sergey Kukhotsky, PA-C, and Drs. Amy
Rodriguez, M.D., Dan Phan, M.D., John Gilbert, Ph.D., Normal
Staley, M.D., Richard Benardez-Fu, M.D., and Jenna Yun, Ph.D.
Dkt. 14, pp. 2-17.
Mr. Kukhotsky and Dr. Rodriguez
asserts the ALJ failed to properly consider the medical
opinions completed by Mr. Sergey Kukhotsky, PA-C, and Dr. Amy
Rodriquez, M.D. Dkt. 14, pp. 2-9. Mr. Kukhotsky,
Plaintiff's treating provider, is a certified
physician's assistant. He submitted two opinions, the
first was completed in August 2015 and the second completed
in July 2016. Mr. Kukhotsky is the sole author of the August
2015 opinion. See AR 887-91. The July 2016 opinion
was completed by Mr. Kukhotsky and signed by Dr. Rodriquez,
stating she was signing as the supervising physician who is
familiar with Plaintiff's medical history and agrees with
the findings of the examining health care provider.
See AR 1098. The Court reviewed the treatment notes
from Community Health Center, the health center where both
Dr. Rodriquez and Mr. Kukhotsky practice. There is no
indication Dr. Rodriquez examined or treated Plaintiff, nor
is there any indication Dr. Rodriquez closely supervised Mr.
Kukhotsky's treatment of Plaintiff. Therefore, the Court
will treat both the August 2015 and the July 2016 opinions as
medical opinions from an “other” medical source.
See Connolly v. Commissioner of Social Security,
2017 WL 1856650, at *3-4 (D. Ariz. May 9, 2017) (finding a
physician's assistant's opinion co-signed by a
physician was not an opinion from an acceptable medical
source where the treatment notes were exclusively signed by
the physician's assistant and the plaintiff pointed to no
evidence showing the physician did anything beyond signing
to the relevant federal regulations, medical opinions from
“other medical sources, ” such as nurse
practitioners, therapists and chiropractors, must be
considered. See 20 C.F.R. § 404.1513 (d);
see also Turner v. Comm'r of Soc. Sec., 613 F.3d
1217, 1223-24 (9th Cir. 2010) (citing 20 C.F.R. §
404.1513(a), (d)); SSR 06-3p, 2006 WL 2329939. “Other
medical source” testimony “is competent evidence
that 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);
Turner, 613 F.3d at 1224. “Further, the
reasons ‘germane to each witness' must be
specific.” Bruce v. Astrue, 557 F.3d 1113,
1115 (9th Cir. 2009); see Stout, 454 F.3d at 1054
(explaining “the ALJ, not the district court, is
required to provide specific reasons for rejecting lay
August 2015 Opinion
August 21, 2015, Mr. Kukhotsky completed a physical
functional evaluation of Plaintiff. AR 887-91. Mr. Kukhotsky
diagnosed Plaintiff with fibromyalgia, spinal stenosis,
“achiless bursitis, ” and major depression. AR
888. Due to her fibromyalgia, spinal stenosis, and
“achiless bursitis, ” Mr. Kukhotsky found
Plaintiff markedly limited in her ability to sit, stand,
walk, lift, carry, handle, push, pull, reach, stoop, crouch,
see, hear, and communicate. AR 888. Mr. Kukhotsky opined
Plaintiff is severely limited and unable to meet the demands
of sedentary work. AR 889.
gave little weight to Mr. Kukhotsky's August 2015 opinion
because (1) the opinion is not well-supported by reference to
objective medical evidence; (2) the opinion is inconsistent
with objective medical evidence; and (3) Mr. Kukhotsky is not
an acceptable medical source. AR 28.
the ALJ rejected the August 2015 opinion because Mr.
Kukhotsky did not support the opinion with reference to
specific aspects of the objective medical evidence. AR 28. An
ALJ may reject an opinion “if that opinion is brief,
conclusory, and inadequately supported by clinical
findings.” Batson v. Commissioner of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004);
Bayliss, 427 F.3d at 1216; see Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Here, the
ALJ noted that, when asked to describe Plaintiff's
treatment history, Mr. Kukhotsky only referenced “PT,
back injections, pain meds, antidepressants, surgery of the
foot.” AR 28. The ALJ also found Mr. Kukhotsky did not
complete all range of motion measurements. AR 28. The Court
does not find, nor does Defendant cite, any requirement that
a medical provider must specifically reference objective
medical evidence in his opinion. See Dkt. 21. In
this case, the record contains treatment notes from
Plaintiff's clinical visits to the Community Health
Center, where Mr. Kukhotsky was Plaintiff's primary care
provider. See AR 782-886, 976-1094, 149-1375.
Despite the lengthy treatment notes, the ALJ did not
reference that he considered these medical records when
finding Mr. Kukhotsky's opinion was not well-supported by
reference to objective medical evidence and thus makes no
correlation between the treatment notes and why they are