United States District Court, W.D. Washington, Tacoma
ORDER REMANDING FOR FURTHER ADMINISTRATIVE
C. COUGHENOUR UNITED STAT ES DISTRICT JUDGE
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).
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
the five-step disability evaluation process,  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.
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.
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.
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).
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.
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).
Maria W. Wilder, ARNP
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).
Commissioner does not concede error on any other issue.
Patricia Sylwester, M.D.
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 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 ...