United States District Court, W.D. Washington, Tacoma
Theresa L. Fricke United States Magistrate Judge.
has brought this matter for judicial review of
defendant's denial of her applications for Disability
Insurance Benefits and Supplemental Security Income
disability benefits. The parties have consented to have this
matter heard by the undersigned Magistrate Judge.
discussed below, the ALJ's decision is reversed and
remanded for an award of benefits.
ISSUES FOR REVIEW
the ALJ commit harmful error by discounting the opinions of
treating physicians Dr. Poolos (neurologist) or Dr. Dassel
(primary care physician)?
the ALJ commit harmful error in finding plaintiff's
statements about her condition and limitations were not
the ALJ commit harmful error in finding that plaintiff's
seizure condition did not meet the criteria for Social
Security Listing 11.02(D) concerning dyscognitive seizures?
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error, or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Biestek v. Berryhill, 139
S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). This requires
“more than a mere scintilla, ” of evidence.
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). It must weigh both the evidence that supports, and
evidence that does not support, the ALJ's conclusion.
Id. The Court considers in its review only the
reasons the ALJ identified and may not affirm for a different
reason. Id. at 1010. Furthermore,
“[l]ong-standing principles of administrative law
require us to review the ALJ's decision based on the
reasoning and actual 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, 1225-26 (9th Cir. 2009) (citations
must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of either a treating or
examining physician. Trevizo v. Berryhill, 871 F.3d
664, 675 (9th Cir. 2017) (quoting Ryan v. Comm'r of
Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). When a
treating or examining physician's opinion is
contradicted, an ALJ must provide specific and legitimate
reasons for rejecting it. Id. In either case,
substantial evidence must support the ALJ's findings.
Id. Under Ninth Circuit law, opinions from
non-examining medical sources that contradict a treating
physician's opinion will trigger the “specific and
legitimate reasons” standard of review. See,
e.g., Revels v. Berryhill, 874 F.3d 648, 662
(9th Cir. 2017).
may not reject a medical source opinion because it is based
on the claimant's self-reports when the medical source
analyzes those self-reports using objective measures. In
Buck v. Berryhill, the court held that the ALJ erred
when he discounted the examining physician's opinion on
the basis that the “opinion was based in part on [the
claimant's] self-report” because the examining
doctor “also conducted a clinical interview and a
mental status evaluation.” 869 F.3d 1040, 1049 (2017).
The court held that the interview and mental status
evaluation were “objective measures and cannot be
discounted as a ‘self-report.'” Id.
case, the ALJ erred by rejecting evidence from the
plaintiff's treating neurologist, Dr. Poolos. AR 30. This
neurologist confirmed that plaintiff had seizures two to four
times each month, on average. AR 1171. Dr. Poolos specializes
in epilepsy and presented plaintiff's case to a team of
physicians at the Harborview Epilepsy Center in Seattle - the
result was that plaintiff's diagnosis was determined by
the Harborview panel of epilepsy specialists to be
“refractory epilepsy”. AR 551. This assessment
was based ...