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Michelle D. H. v. Commissioner of Social Security

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

November 13, 2019

MICHELLE D. H., Plaintiff,


          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         After 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.


         On July 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.

         On 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.[1]

         In the 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.


         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 properly considered the medical opinion evidence.

         Plaintiff 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.

         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. 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. 1989)).

         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 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”).

         A. Dr. Becker

         Dr. 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” because:

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 titles.

AR 845.

         Ultimately, 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 ...

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