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Mako B. v. Commissioner of Social Security

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

September 20, 2019

MAKO B., Plaintiff,



         Plaintiff has brought this matter for judicial review of Defendant's denial of her applications for disability insurance and supplemental security income benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. For the reasons set forth below, the undersigned agrees that the ALJ erred and the ALJ's decision is reversed and remanded for an award of benefits.


         1. Did the ALJ err in evaluating the medical opinion evidence?

         2. Did the ALJ err in evaluating Plaintiff's subjective allegations?

         3. Did the ALJ err in assessing Plaintiff's residual functional capacity (“RFC”)?


         On March 28, 2013, Plaintiff filed applications for disability insurance benefits and supplementary security income. AR 14, 230-38, 239-49. In both applications, Plaintiff alleged a disability onset date of February 28, 2009. Id. Plaintiff's applications were denied upon initial administrative review and on reconsideration. AR 144-47, 151-55, 156-64. The first hearing was held before Administrative Law Judge (“ALJ”) Kimberly Boyce on April 9, 2014. AR 34-63, 717-46. In a decision dated, June 24, 2014, the ALJ found that Plaintiff was not disabled. AR 11-27, 665-81. The Social Security Appeals Council denied Plaintiff's request for review on October 2, 2015. AR 1-4, 688-91.

         Plaintiff filed a complaint with this Court; on October 18, 2016, the Court reversed the ALJ's decision and remanded for further administrative proceedings. AR 695, 696-710.

         On July 25, 2017, ALJ Boyce held a new hearing, AR 634-64, and determined that Plaintiff was not disabled. AR 610-26. Plaintiff appealed to this Court and seeks an order remanding this case either for further administrative proceedings or an award of benefits. Dkt. 10, p. 18.


         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). This requires “more than a mere scintilla” of evidence. Id.

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. Only the reasons identified by the ALJ are considered in the scope of the Court's review. Id.


         The Commissioner uses a five-step sequential evaluation process to determine if a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The ALJ assesses the claimant's RFC to determine, at step four, whether the plaintiff can perform past relevant work, and if necessary, at step five to determine whether the plaintiff can adjust to other work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). The ALJ has the burden of proof at step five to show that a significant number of jobs that the claimant can perform exist in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(e), 416.920(e).

         In this case, the ALJ found that Plaintiff had the following serious medical conditions: Diabetes mellitus, obesity, palmoplantar keratoderma, left ankle degenerative joint disease based on an old fracture, and depression. AR 615. The ALJ found that Plaintiff could not perform her previous work, but determined there were sedentary occupations that Plaintiff would be able to perform; therefore the ALJ determined at step 5 that Plaintiff was not disabled. AR 618, 625.

         A. Whether the ALJ erred in evaluating the medical opinion evidence

         Plaintiff alleges that the ALJ erred in evaluating the opinions of examining physicians William Alto, M.D., Soada Zubair, M.D., and non-examining physician Jessica McHugh, M.D. Dkt. 10, pp. 3-9.

         In assessing an acceptable medical source - such as a medical doctor - the 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)).

         1. Dr. Alto

         Plaintiff maintains that the ALJ erred in evaluating the opinion of examining physician Dr. William Alto. Dkt. 10, pp. 4-5.

         Dr. Alto evaluated Plaintiff on May 2, 2013 for the Washington State Department of Social and Health Services (“DSHS”). AR 521-25. Dr. Alto assessed Plaintiff as being able to perform sedentary work. AR 523. Dr. Alto also conducted a physical examination ...

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