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Michelle G. v. Commissioner of Social Security

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

September 19, 2019

MICHELLE G., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

          J. Richard Creatura United States Magistrate Judge

         This 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.

         After 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.

         The ALJ 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.

         The ALJ 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 activities.

         When 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 national economy.

         Accordingly, 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).

         PROCEDURAL HISTORY

         Plaintiff's 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.

         On 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.

         BACKGROUND

         Plaintiff, 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.

         STANDARD OF REVIEW

         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)).

         DISCUSSION

         Plaintiff 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.

         Additionally, 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.

         I. Medical Opinion Evidence

         Plaintiff 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).

         In 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)[1] (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).

         A 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 independent ...


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