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Toni J. H. v. Commissioner of Social Security

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

September 9, 2019

TONI J. H., Plaintiff,


          David W. Christel United States Magistrate Judge

         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 disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

         After 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.


         On 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.

         In the 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.[1]Plaintiff requests a remand for an award of benefits. Id. at p. 18.


         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 erred by failing to properly consider the medical opinion evidence.

         Plaintiff 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.

         A. Mr. Kukhotsky and Dr. Rodriguez

         Plaintiff 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 the form).

         Pursuant 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 testimony”).

         1. August 2015 Opinion

         On 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.

         The ALJ 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.

         First, 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 ...

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