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Keith B. v. Commissioner of Social Security

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

December 4, 2019

KEITH B., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA Chief United States Magistrate Judge

         Plaintiff appeals the ALJ's decision finding him not disabled. The ALJ found degenerative disc disease of the lumbar spine and degenerative joint disease of the left joint ankle are severe impairments; plaintiff has the residual functional capacity (RFC) to perform light work with additional limtiations; and plaintiff is not disabled because he can perform past relevant work as a sheet metal worker. Tr. 19-28. Plaintiff contends the ALJ misevaluated the opinions of treating doctor Paul Mayeda, M.D., and plaintiff's testimony, and the Court should remand for an award of benefits or alternatively further proceedings. Dkt. 13.

         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).

         DISCUSSION

         A. Dr. Mayeda

         Plaintiff contends the ALJ misevaluated the opinions of treating doctor Paul Mayeda, M.D. The ALJ must provide specific and legitimate reasons to reject a contradicted medical opinion, such as Dr. Mayeda's. 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).

         The ALJ rejected Dr. Mayeda's opinion that due to chronic back pain, plaintiff cannot complete a regular work schedule; can sit and stand only a few minutes; requires positional changes and unscheduled breaks, would have three work absences a month and would “experience frequent interruptions to his attention and concentration.” Tr. 26. The ALJ rejected the opinions first finding Dr. Mayeda “conducted little to no testing of the claimant's spine movment or strength, ” and thus the doctor's opinions “were primarily based upon the claimant's subjective reports.” Id. Substantial evidene does not support the finding.

         Dr. Mayeda indicated following an auto accident, plaintiff suffered from chronic back pain despite failed attempts at rehabilitation, laminectomy, physical therapy, acupuncture, and a rhizotomy. Tr. 436. The doctor further noted plaintiff “sought opinions and treatment from another surgeon and physiatrist with no improvements.” Id. Dr. Mayeda stated the clinical and laboratory findings supporting his opinions include “SPECT/bone scan” and “CT myelogram.” Tr. 474. The record thus shows Dr. Mayeda based his opinions on more than just what plaintiff told him, looking to plaintiff's course of treatment and imaging results. As the doctor was not simply parroting plaintiff's pain complaints in arriving at his conclusions, the ALJ accordingly erred.

         The ALJ also found plainiff's “normal gait and intact strength, sensation and extremity movement during other examinations” contradict Dr. Mayeda's opinion. Tr. 26. The record however does not contain opinions showing normal gait, strength or intact sensation are findings that are inconsistent with plaintiff's pain symptoms. The ALJ thus erred by reaching a medical conclusion about plaintiff's pain limitaions based upon these findings without specifying medical evidence in support. See e.g. Gray v. Colvin, No. 12-213, 2013 WL 5526052 at * 6 (E.D. Wash. Oct. 4, 2013) (ALJ impermissibly reaches medical conclusions about a claimant without relying on medical evidence.). Substantial evidence does not support the ALJ's finding and the ALJ accordingly erred.

         The Commissioner defends ALJ's determination raising rationalizations upon which the ALJ did not rely. The Commissioner argues the imaging scans should not be considered in support of Dr. Mayeda's opinion, and further that examining doctor Dan Phan M.D. and reviewing doctor James Irwin, M.D., opined plaintiff could perform light work. Dkt. 16 at 7. The ALJ did not reject Dr. Mayeda's opinions on these bases. The Court reviews the ALJ's decision “based on the reasoning and findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of SSA, 554 F.3d 1219, 1225 (9th Cir. 1995).

         The Commissioner also argues Dr. Mayeda's opinions are contradicted by examination findings such as normal strength, gait etc. As discussed above the ALJ erred in rejecting Dr. Mayeda's opinions on this basis and the Court accordingly rejects the Commissioner's defense.

         The Court further notes the opinion of a non-examining doctor such as Dr. Irwin, alone, is not substantial evidence justifying the rejection of the opinion of treating doctor such as Dr. Mayeda. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). Hence Dr. Irwin's opinion is not a basis upon which the Court may affirm the ALJ's determination.

         Additionally the ALJ's treatment of Dr. Phan's opinion is problematic. The Commissioner places great stock on Dr. Phan's opinion but the ALJ rejected the doctor's opinion plaintiff has twisting and turning limitations. Tr. 26. Dr. Phan also opined plaintiff was limited to sitting, standing and walking “up to six hours cumulatively” in an eight hour work day. Tr. 398. The ALJ did not reject this limitation but failed to include it in the RFC determination. That Dr. Phan opined plaintiff was limited to no more than six hours of sitting, walking and standing cumulatively is critical; the vocational expert testified plaintiff could not perform past relevant work if he was so limited “because he performed the job on his feet all day, standing and walking eight hours.” Tr. 51.

         B. ...


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