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Fariba G., v. Commissioner of Social Security

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

November 15, 2019

FARIBA G., Plaintiff,


          BRIAN A. TSUCHIDA Chief United States Magistrate Judge

         Plaintiff appeals the ALJ's decision finding her not disabled. The ALJ found disorder of the back, obesity, depression NOS, anxiety NOS, and somatoform disorder are severe impairments; plaintiff has the residual funcational capacity (RFC) to perform light work subject to additional limitations; plaintiff has no past relevant work but is not disabled because she can perform jobs in the national economy. Tr. 15-29. Plaintiff contends the Court should remand the case for further proceedings because the ALJ's misevaluation of the opinions of treating and examining providers result in an RFC determination that does not account for all of plaintiff's limitations, and plaintiff is disabled because her mental limitations meet or equal the criteria of a listed impairment. Dkt. 13 at 1-2. For the reasons below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).


         The Court will reverse the ALJ's decision if it is not supported by substantial evidence in the record or if the ALJ applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The Court will not reverse the ALJ's decision for errors that are harmless. Id. at 1111. Where the evidence is susceptible to more than one rational interpretation, the Court must uphold the Commissioner's interpretation. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         A. Medical and Other Source Opinions

         Plaintiff contends the ALJ misevaluated the opinions of treating doctor Diane Timberlake, M.D., treating therapist Maliha Mirza, M.S.W., M.H.P., examining doctor Gerald Cavnee, examining doctor Andrea Marshall, D.O., and reviewing doctor Greg Saue, M.D. The ALJ must provide clear and convincing reasons to reject an uncontradicted medical opinion, or specific and legitimate reasons where contradicted. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). The ALJ must do more than offer his conclusions; he must also explain why his interpretation, rather than the doctor's interpretation, is correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The opinion of a non-examining doctor cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).

         Mental health professionals or licensed social workers are not acceptable medical sources who can give medical opinions for claims filed before March 27, 2017. The claim herein was filed in 2015 and the ALJ therefore evaluates opinions of other medical sources using the same factors used to evaluate medical opinions of acceptable medical sources, 20 C.F.R. § 419.927(f), and must give specific, germane reasons for rejecting opinions from other sources. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).

         1. Dr. Timberlake

         Plaintiff contends the ALJ erred in discounting limitations Dr. Timberlake noted in a physical functional evaluation dated Janaury 27, 2016. Dkt. 13 at 4. Dr. Timberlake diagnosed plaintiff with “backpain” and opined it limited plaintiff to performing sedentary work due to moderate limiations in her ability to lift, carry, push, pull and reach. Tr. 420-21. The ALJ rejected Dr. Timerlake's opinion backpain limited plaintiff to sedentary work on the grounds backpain, alone, is not a medically determinable impairment. Tr. 25-26. The ALJ erred because the ALJ at step two found disorder of the back is a severe impairment; the record contained “various descriptions of the cause of plaintiff's backpain”; and the ALJ's stated he would address all the limitations alleged or opined, Tr. 18, and the ALJ found plaintiff's medically determinable conditions could cause the limitations plaintff's alleged including problems with reaching due to pain. Tr. 22-23. Moreover, Dr. Timberlake's more detailed treatment notes also dated January 27, 2016 set forth a medically determinable condition in diagnosing plaintiff as suffering from “Mastodynia with chronic neck and upper back pain.” Tr. 525. The ALJ did not discuss this diagnosis or why it could not cause the limitations Dr. Timberlake assessed and accordingly erred.

         The ALJ also rejected Dr. Timberlake's opinion as inconsistent with her treating note stating: plaintiff's “main issues and the diagnosis for which she may be considered unable to work are her psychiatric symptoms. She has depression and somatization disorder.” Tr. 524. Plaintiff claims the ALJ improperly “cherry-picked” evidence and Dr. Timberlake's statement is merely indicative of the complex nature between plaintiff's mental and physical conditions. Dkt. 13 at 7. The record does not support plaintiff's argument. The statement Dr. Timberlake made that plaintiff's main issues are psychiatric was made on the same day the doctor completed the functional assessment. The statement is thus directly related to the functional assessment and not a disconnected observation the ALK impermissibly cherry-picked.

         Further Dr. Timberlake's treatment notes do not support plaintiff's claim the doctor found plaintiff's mental and physical problems are interrelated. Dr. Timberlake's treatment notes first describe plaintiff's back pain and other physical complaints. Tr. 523-24. Dr. Timberlake then separately discusses plaintiff's mental health problems and opines the main issue and diagnosis regarding why plaintiff may be disabled are her “psychiatric symptoms.” Id. at 524. The ALJ accordingly reasonably found the opinion Dr. Timberlake gave in the January 16, 2016, functional assessment is inconsistent with the opinion the doctor gave in her January 16, 2016, treatment notes. Because the ALJ gave at least one valid reason supported by substantial evidence to reject the opinion Dr. Timberlake provided in the functional report that plaintiff cannot work due to backpain the Court affirms the ALJ's determination.

         2. Ms. Mirza

         In July 2015, Ms. Mirza completed a DSHS “Documentation Request for Medical or Disability Condtion” form. Tr. 422. Ms. Mirza indicated “Fariba states that she is not able to carry heavy things or stand for longer perod of time due to body/back pain and dissiness, ” and that “Fariba has a difficulty concentrating long periods of time and finding motivation to engage and advocate for herself due to depression.” Tr. 422. Ms. Mirza opined plaintiff was limited to “0” hours of work per week due to her physical limiations and 1-10 hours a week due to her mental health problems. Id.

         The ALJ rejected Ms. Mirza's opinion plaintiff's physical problems precluded work because the opinion relied solely upon plaintiff's statements. Tr. 27. Plaintiff does not contest this finding and acknowledges “Ms. Mirza did make clear that with regard to the Plaintiff's physical conditions she was relying on the ...

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