United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON PLAINTIFF'S
Richard Creatura United States Magistrate Judge
matter has been referred to United States Magistrate Judge J.
Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and
Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by
Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261,
271-72 (1976). This matter has been fully briefed.
See Dkts. 12, 16, 17.
considering and reviewing the record, the Court finds that
the ALJ failed to provide specific and legitimate reasons,
supported by substantial evidence for rejecting the opinions
of two treating providers. The ALJ rejected Dr.
Johansen's opinion regarding plaintiff's right arm
condition because her performance on another examination
showed improvement. This was not based on substantial
evidence because the second examining doctor noted marked
limitations to the use of plaintiff's right arm, which
the ALJ failed to discuss.
rejected Dr. Haller's opinions regarding plaintiff's
right arm condition because it was not from the relevant time
period. However, the opinion is clear that, although it was
issued after the expiration of plaintiff's insured
status, it related to the relevant time period. The Ninth
Circuit has held that opinions issued after a plaintiff's
insured status expires are relevant to the plaintiff's
functioning during the relevant period.
also failed to give clear and convincing reasons for
rejecting plaintiff's symptom testimony, relying on
plaintiff's daily activities without making specific
findings regarding what testimony contradicted those
the improperly rejected evidence is credited as true, it is
clear that plaintiff is disabled pursuant to social security
regulations. There are no other outstanding issues to be
resolved. The vocational expert testified that if plaintiff
were limited in her ability to reach out in front with her
dominant right arm, that she could perform no jobs in the
this Court recommends that this matter be reversed and
remanded to the Commissioner and that benefits be awarded
pursuant to sentence four of 42 U.S.C. § 405(g).
application for disability insurance (“DIB”)
benefits pursuant to 42 U.S.C. § 423 (Title II) of the
Social Security Act were denied initially and following
reconsideration. AR. 78, 94. Plaintiff's requested
hearing was held before Administrative Law Judge Tom L.
Morris (“the ALJ”) on November 16, 2017.
See AR. 37. On January 31, 2018, the ALJ issued a
written decision in which the ALJ concluded that plaintiff
was not disabled pursuant to the Social Security Act.
See AR. 14.
December 7, 2018, the Appeals Council denied plaintiff's
request for review, making the written decision by the ALJ
the final agency decision subject to judicial review. AR. 1;
see 20 C.F.R. § 404.981. Plaintiff filed a
complaint in this Court seeking judicial review of the
ALJ's written decision in January 2018. See Dkt.
1. Defendant filed the sealed administrative record regarding
this matter (“AR.”) on April 26, 2019.
See Dkt. 10.
Michelle G., was born in 1972 and was 38 years old on the
alleged disability onset date of May 23, 2010. AR. 79.
Plaintiff has a GED and work history in customer service. AR.
250. Plaintiff stopped working because of her conditions. AR.
249, Plaintiff filed her claim for disability on February 9,
2015 alleging impairments of ulcerative colitis, complex
annul fistula, thoracic outlet syndrome, and
depression/anxiety. AR. 79. According to the ALJ, plaintiff
has at least the severe impairments of right shoulder
degenerative joint disease, status-post arthroscopy, thoracic
outlet syndrome, and a history of bowel disorder with
perianal fistulas. AR. 19.
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
filed her application for disability alleging primarily
physical impairments. In plaintiff's opening brief,
plaintiff raises the following issues: (1) Whether the ALJ
erred in evaluating the opinions of the medical experts; and
(2) Whether the ALJ erred in rejecting plaintiff's
symptom report. See Dkt. 12 at 1.
there is the issue of whether plaintiff was disabled prior to
her date last insured (“DLI”). 20 C.F.R. §
404.101; 404.130. Accordingly, plaintiff must show that she
was disabled before December 31, 2015. AR. 17.
Medical Opinion Evidence
alleges that the ALJ erred in rejecting the medical opinions
of several treating and examining physicians. When an opinion
from an examining or treating doctor is contradicted by other
medical opinions, the treating or examining doctor's
opinion can be rejected “for specific and legitimate
reasons that are supported by substantial evidence in the
record.” Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d
1035, 1043 (9th Cir. 1995).
general, more weight is given to a treating medical
source's opinion than to the opinions of those who do not
treat the claimant. Lester, 81 F.3d at 830 (citing
Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)).
According to the Ninth Circuit, “[b]ecause treating
physicians are employed to cure and thus have a greater
opportunity to know and observe the patient as an individual,
their opinions are given greater weight than the opinion of
other physicians.” Smolen v. Chater, 80 F.3d
1273, 1285 (9th Cir. 1996) (citing Rodriguez v. Bowen,
876 F.2d 759, 761-762 (9th Cir. 1989). On the other hand, an
ALJ need not accept the opinion of a treating physician, if
that opinion is brief, conclusory and inadequately supported
by clinical findings or by the record as a whole. Batson
v. Commissioner of Social Security Administration, 359
F.3d 1190, 1195 (9th Cir. 2004) (citing Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)); see
also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002). However, the ALJ may not reject a brief, conclusory
opinion from a treating physician if the opinion is
consistent with the claimant's testimony and with the
doctor's treatment notes. See Burrell v. Colvin,
775 F.3d 1133, 1140 (9th Cir. 2014).
non-examining physician's or psychologist's opinion
may not constitute substantial evidence by itself sufficient
to justify the rejection of an opinion by an examining
physician or psychologist. Lester, 81 F.3d at 831
(citations omitted). However, “it may constitute
substantial evidence when it is consistent with other