United States District Court, W.D. Washington, Tacoma
MICHELLE D. H., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge
filed this action, pursuant to 42 U.S.C. § 405(g), for
judicial review of Defendant's denial of Plaintiff's
applications for disability insurance benefits
(“DIB”). Pursuant to 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the
parties have consented to have this matter heard by the
undersigned Magistrate Judge. See Dkt. 3.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred when he
improperly evaluated the medical opinion evidence. Had the
ALJ given proper weight to the opinions of Dr. Theodore
Becker, Dr. Glenn Goodwin, Dr. David White, Dr. Marc Redmon,
Dr. Gina Cadena-Forney, Mr. Donald Uslan, and Ms. Amy
Williams, Plaintiff's residual functional capacity
(“RFC”) may have included additional limitations.
The ALJ's error is therefore harmful, and this matter is
reversed and remanded pursuant to sentence four of 42 U.S.C.
§ 405(g) to the Commissioner of the Social Security
Administration (“Commissioner”) for further
proceedings consistent with this Order.
AND PROCEDURAL HISTORY
6, 2011, Plaintiff filed an application for DIB, alleging
disability as of June 8, 2011. See Dkt. 6,
Administrative Record (“AR”) 25. The application
was denied upon initial administrative review and on
reconsideration. See AR 25. A hearing was held
before ALJ Verrell Dethloff on January 23, 2013. See
AR 25. In a decision dated March 25, 2013, Judge Dethloff
determined Plaintiff to be not disabled. See AR 25.
Plaintiff's request for review of the ALJ's decision
was granted by the Appeals Council, which reversed the
ALJ's decision and remanded the case for additional
findings. The case was remanded to ALJ Glen G. Meyers, who
conducted a second hearing. AR 25. On September 21, 2015, ALJ
Meyers found Plaintiff was not disabled within the meaning of
Sections 216(i) and 223(d) of the Social Security Act. AR 42.
Plaintiff's request for review of the decision was
granted by the Appeals Council, and pursuant to this
Court's remand order, the Appeals Council vacated the
final decision of the Commissioner and remanded this case
back to ALJ Meyers.
remand, Plaintiff received a second hearing, and on December
5, 2018, the ALJ again found Plaintiff not disabled. AR 1412.
Plaintiff did not request review of the ALJ's decision by
the Appeals Council, making the ALJ's December 5, 2018
decision the final decision of the Commissioner. See
AR 1398. Plaintiff now appeals the ALJ's December 5, 2018
decision finding Plaintiff not disabled.
Opening Brief, Plaintiff maintains the ALJ erred by: (1)
failing to properly evaluate the medical opinion evidence;
(2) rejecting Plaintiff's subjective symptom testimony;
and (3) rejecting the lay witness opinions. Dkt. 10, p. 1.
Plaintiff requests remand for an award of benefits.
Id. at 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
Whether the ALJ properly considered the medical opinion
contends the ALJ erred in his evaluation of the medical
opinion evidence submitted by Dr. Becker, Dr. Goodwin, Dr.
Cadena-Forney, Dr. White, Dr. Redmon, Mr. Uslan, and Ms.
Williams. AR 4-15.
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. 1996) (citing Embrey v. Bowen, 849
F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan,
908 F.2d 502, 506 (9th Cir. 1990)). 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)). The ALJ can accomplish this by “setting
out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
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 v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050,
1054 (9th Cir. 2006) (explaining “the ALJ, not the
district court, is required to provide specific reasons for
rejecting lay testimony”).
Becker, a Doctor of Human Performance (considered an
“other” medical source), completed two
performance-based physical capacity evaluations of Plaintiff:
one in August 2012, and one in April 2016. AR 818-847,
2532-2603. Dr. Becker completed an oral medical report to
Plaintiff's attorney in November 2012 and in April 2016.
AR 951-964, 2604-2615. Dr. Becker opined that, in light of
his extensive testing and observations, Plaintiff was unable
to sustain fulltime employment. See AR 957. When
asked what data supports his opinion, Dr. Becker pointed to
several testing results in support. AR 2610. For example, Dr.
Becker noted Plaintiff's knees and lower extremities
swelled after completing basic tasks. AR 2610. In general,
Dr. Becker noted Plaintiff's physical capacity quickly
decreased while taking the tests, which he opined was
indicative of physiological fatigue. AR 2611. Dr. Becker
further opined Plaintiff is “work intolerant”
There is a significant physiological dysfunction as
demonstrated by the excessively elevated heart rate above
resting, the extended recovery to resting and the examinee
[sic] failure to maintain protocol task pace. The
physiological data shows the examinee is not capable of
sustained, competitive and predictable tolerance for work
related tasks according to the dictionary of occupational
Dr. Becker opined “[o]n a more probable than not basis,
I believe that [Plaintiff] is incapable of full time
sedentary work.” AR 2610. After noting Dr. Becker's
finding of fatigue and work intolerance, the ALJ said:
This is not inconsistent with limiting [Plaintiff] to
sedentary work, as sedentary work would accommodate her
physiological fatigue and address concerns raised in Dr.
Becker's medical report. The undersigned gives some
weight to the findings in Dr. Becker's report and notes
that the ultimate finding of disability ...