United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
appeals the ALJ's decision finding her not disabled. The
ALJ found degenerative disc disease of the cervical and
lumbar spine, left knee meniscal tear, right carpal tunnel
syndrome, and a depressive disorder, an anxiety disorder, a
personality disorder and post-traumatic stress disorder are
severe impairments; plaintiff has the residual functional
capacity (RFC) to perform light work with additional
limtiations; and plaintiff has no past relevant work but is
not disabled because she can perform other work in the
national economy. Tr. 43-56.
contends the Court should remand the case for an award of
benefits because the ALJ failed to explain why probative
evidence was rejected, and misevaluated the opinions of
examining doctor Keith Ly, M.D. and Stephanie Naas, FNPC.
Dkt. 10. 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.
Consideration of Lay Home Care Evidence
argues the ALJ erred by rejecting or by failing to discuss
evidence she received 77 hours of home care in January 2017.
See Opening Brief, Dkt. 10 at 4. She contends this
evidence shows she needs help with activities of daily living
both in and outside her home and help with behavioral issues
such as yelling, screaming, irritability, agitation and
cutting when stressed. Id. Plaintiff submits this
evidence “suggests severe limitations that Plaintiff is
dealing with.” Id.
Commissioner argues the Court should reject the argument
because (1) plaintiff has failed to show how the ALJ erred,
and has failed to demonstrate prejudice; (2) “the ALJ
reasoned that the medical evidence of record and
Plaintiff's activities supported a greater level of
functioning than suggested by the award of chore service
assistance by the state”; and (3) there is no basis to
determine how the chore services were arrived at. Dkt. 12 at
ALJ's decision notes plaintiff received home care but
does not explain what weight the records were given. Tr. 51.
The Court thus rejects the Commissioner's second and
third arguments as impermissible post hoc arguments. 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 ALJ gave
no reasons to reject the evidence and the Court accordingly
cannot adopt the rationale the Commissioner now presents.
the Commissioner's first argument merits close scrutiny.
Plaintiff bears the burden of establishing the ALJ harmfully
erred. Molina v. Astrue, 674 F.3d 1104, 1111 (9th
Cir. 2012). The Court may deem any argument that is
unsupported by explanation or authority as waived. See
Avila v. Astrue, No. C07-1331, 2008 WL 4104300 (E.D.
Cal. Sept. 2, 2008) at * 2 (unpublished opinion) (citing
Northwest Acceptance Corp. v. Lynnwood Equip., Inc.,
841 F.2d 918, 923-24 (9th Cir. 1996) (party who presents no
explanation in support of claim of error waives issue);
Independent Towers of Washington v. Washington, 350
F.3d 925, 929 (9th Cir. 2003)). Here, the homecare records
indicate, on their face, plaintiff has physical and mental
health limitations that are similar to her testimony about
her limitations. Hence the fact plaintiff did not explicitly
explain how the ALJ erred and how she was prejudiced is not
automatically fatal. This is evident because the records, if
believed, set forth limitations the ALJ should have
addressed. The ALJ failed to do so and accordingly erred.
error however is harmless. The homecare records are lay
records. The ALJ failed to provide reasons to reject this lay
evidence. However, the ALJ rejected plaintiff's testimony
about limitations which are similar to the limitations
indicated in lay home care evidence. In specific the ALJ
rejected plaintiff's testimony as unsupported by the
medical record and inconsistent with her activities. Tr. 49,
51. Plaintiff does not challenge these determinations.
Because the ALJ rejected plaintiff's testimony for
reasons that are equally relevant to the lay home care
evidence, any error the ALJ may have committed is harmless.
Molina, 674 F.3d at 1115 (Where ALJ gives reasons
for rejecting claimant's testimony regarding her symptoms
that are equally relevant to the similar testimony of the lay
witnesses, and that would support a finding that the lay
testimony was similarly not credible, any error the ALJ
committed in failing to address the lay testimony is
harmless.). The Court accordingly affirms the ALJ's
determination as to the homecare records.
Medical and Other Source Evidence
contends the ALJ misevaluated the opinions of Dr. Ly and Ms.
Naas, FNPC. The ALJ must provide specific and legitimate
reasons to reject a contradicted medical opinion, such as Dr.
Ly'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).
Naas is a Family Nurse Practioner. She is therefore not an
acceptable medical source who can give medical opinions for
claims filed before March 27, 2017. Plaintiff filed her claim
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).