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Richard F. v. Commissioner of Social Security

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

December 10, 2019

RICHARD F., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          JOHN C. COUGHENOUR UNITED STAT ES DISTRICT JUDGE

         Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. Plaintiff contends the ALJ erred by rejecting his and his wife's testimony and several medical opinions, and requests the matter be remanded for payment of benefits. Dkt. 11, 21. The Commissioner concedes the ALJ erred by failing to address one medical opinion, and contends the matter should be remanded for further administrative proceedings. Dkt. 20. As discussed 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).

         I. BACKGROUND

         Plaintiff is currently 52 years old, has a high school education, and has worked as a heavy truck driver. Dkt. 8, Admin. Record (AR) 26. On June 15, 2016, Plaintiff applied for benefits, alleging disability as of November 12, 2014. AR 81. Plaintiff's applications were denied initially and on reconsideration. AR 80, 94. After the ALJ conducted a hearing on September 20, 2017, the ALJ issued a decision on May 2, 2018, finding Plaintiff not disabled through that date. AR 33-79, 15-28.

         II. THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [1] the ALJ found:

Step one: Plaintiff has not engaged in substantial gainful activity since the November 2014 alleged onset date.
Step two: Plaintiff has the following severe impairments: posttraumatic stress disorder (PTSD), lumbar herniated disc with radiculopathy, recurrent major depressive disorder, unspecified anxiety disorder, and osteoarthritis of the left ankle and foot.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Plaintiff can perform light work. He can frequently climb ramps or stairs, but never climb ladders, ropes, or scaffolds. He can frequently balance, stoop, kneel, crouch, and crawl. He can have occasional exposure to hazards and extreme vibrations. He can have occasional interaction with coworkers and the public. He can perform simple, routine, and repetitive tasks in a work environment free of fast-paced production requirements.
Step four: Plaintiff cannot perform past relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, he is not disabled.

AR 17-28. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. AR 1-3.

         Plaintiff filed a subsequent application for Social Security disability benefits, and was determined to be disabled with an onset date of September 6, 2017. Dkt. 11, Ex. 1.

         III. DISCUSSION

         This Court may set aside the Commissioner's denial of Social Security benefits only if the ALJ's decision is based on legal error or not supported by substantial evidence in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Each of an ALJ's findings must be supported by substantial evidence. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating evidence, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. Thomas v. Barnhart, 278 F.3d 947, 954, 957 (9th Cir. 2002). When the evidence is susceptible to more than one interpretation, the ALJ's interpretation must be upheld if rational. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). This Court “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         A. Medical Opinions

         Plaintiff challenges the ALJ's analysis of two treating providers, two examining doctors, and two non-examining doctors. A treating physician's opinion is generally entitled to greater weight than an examining physician's opinion, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). An ALJ may only reject the uncontradicted opinion of a treating or examining doctor by giving “clear and convincing” reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Even if a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by stating “specific and legitimate” reasons. Id. The ALJ can meet this standard by providing “a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. (citation omitted). “The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.” Reddick, 157 F.3d at 725.

         “Only physicians and certain other qualified specialists are considered ‘[a]cceptable medical sources.'” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (alteration in original); see 20 C.F.R. § 404.1502(a), (d), (e). An ALJ may reject the opinion of a non-acceptable medical source, such as a therapist, by giving reasons germane to the opinion. Id. An ALJ must consider all opinions, including those from non-acceptable medical sources, which may in some cases even outweigh the opinions of acceptable medical sources. See 20 C.F.R. § 404.1527(f).

         1. Maria W. Wilder, ARNP

         The Commissioner contends the ALJ erred by failing to address a May 2017 letter by Ms. Wilder opining that Plaintiff “is unable to work.” AR 364; Dkt. 20 at 2. The Court agrees. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (failure to address medical opinion was not harmless error). While the Commissioner only mentions that Ms. Wilder “indicat[ed] that Plaintiff had a left ankle injury, ” Ms. Wilder based her opinion on Plaintiff's “PTSD, Depression, Ventricular premature beats, Arrhythmia, L5 herniated disc…, Left ankle injury…, [and] osteoarthritis.” Dkt. 20 at 2; AR 364-65. The ALJ's error is harmful because, if accepted, Ms. Wilder's opinions could establish disability directly or could establish limitations not included in the RFC, in which case the ALJ may have relied at step five on jobs Plaintiff cannot perform. See Hill v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 2012).

         The Commissioner does not concede error on any other issue.

         2. Patricia Sylwester, M.D.

         Dr. Sylwester examined Plaintiff in November 2015 and opined that he could stand/walk four hours and sit two hours, and would need to be able to change positions throughout that time. AR 305. The ALJ gave little weight to this portion of Dr. Sylwester's opinions on the grounds that it relied heavily on Plaintiff's unreliable self-reports and conflicted with the objective medical evidence and Plaintiff's activity level. AR 25.

         a. Plaintiff's Self-Reports

         “If a treating provider's opinions are based ‘to a large extent' on an applicant's self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion.” Ghanim, 763 F.3d at 1162 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)). “However, when an opinion is not more heavily based on a ...


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