Porter v. Colvin

Filing 23

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - granting 12 Motion for Summary Judgment and denying 16 Motion for Summary Judgment. The decision of the Commissioner is REVERSED and this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this order. Signed by Judge Donald W. Molloy on 5/29/2014. (APP, )

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MAY 2 9 2014
Clerk,

u.s. District rt)url

District Of Mon·, .
Missoula

CHERYL L. PORTER,

CV 13-101-M-DWM-JCL

Plaintiff,
ORDER

vs.

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

Plaintiff Cheryl L Porter brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner of Social Security
denying her application for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401-434. This matter comes before the Court on
the parties' motions for summary judgment. (Docs. 12 and 16.) Magistrate Judge
Jeremiah Lynch entered findings and recommendations on April 30, 2014,
recommending the Court grant Porter's motion and remand for further
proceedings. (Doc. 20.)
The parties are entitled to de novo review of the specified findings or

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recommendations to which they object. 28 U.S.C. § 636(b)(1). The Court reviews
the findings and recommendations that are not specifically objected to for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach, Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and
firm conviction that a mistake has been committed." United States v. Syrax, 235
F.3d 422, 427 (9th Cir. 2000). Defendant Carolyn Colvin filed an objection on
May 13,2014. (Doc. 21.) Colvin objects to Judge Lynch's determination that the
administrative law judge ("ALJ") did not adequately evaluate the opinion of
Porter's treating physician Dr. Douglas Pittman in his decision to deny Porter's
application for benefits and find her not disabled with the meaning of the Act.
Because the parties are familiar with the factual and procedural background, it will
not be restated here.
Colvin contends the ALJ adequately considered Dr. Pittman's opinions by
making numerous references to Dr. Pittman's records. Colvin further argues Dr.
Pittman never rendered an opinion on Porter's functional limitations, the central
issue in the case. And, based on that, the ALl's failure to explain the fact that Dr.
Pittman released Porter from work for an extended period of time: (1) was not in
error and (2) even if the Court finds the ALJ erred, no harm resulted from that
error because the ALl's decision was adequately supported on other grounds. The
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Court finds the ALl's failure to address Dr. Pittman's opinion was in error and the
matter is remanded.
The Court's review is limited. The Court may set aside the Commissioner's
decision only where the decision is not supported by substantial evidence or where
the decision is based on legal error. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1
(9th Cir. 2005). Substantial evidence 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). "[I]fevidence exists to support more than one rational
interpretation, [the Court] must defer to the Commissioner's decision." Batson v.
Commr. o/Soc. Sec. Administration, 359 F.3d 1190, 1193 (9th Cir. 2004)

A treating physician's opinion is entitled to greater weight than that of an
examining or reviewing physician on the basis that he has a "greater opportunity
to know and observe the patient as an individual." Andrews v. Shalala, 53 F.3d
1035, 1041 (9th Cir. 1995). The weight given a treating physician's opinion
depends on whether it is supported by sufficient medical data and is consistent
with other evidence in the record. 20 C.F.R. § 404.1527(c)(2). To discount the
controverted opinion of a treating physician, the ALl must provide "specific and
legitimate reasons supported by substantial evidence in the record." Reddick v.
Chater, 157 F.3d 715,725 (9th Cir. 1998) (internal quotation marks omitted).
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In making the determination that Porter was not disabled, the ALJ relied on
MRI results from 2007, a medical records review and physical examination by Dr.
Robert Hollis, progress notes and treatment records of treating physician Dr. Scott
Jahnke, a physical assessment by Dr. Mark Ibsen, and a record review by Dr.
William Fernandez. (Tr.23-26.) The ALJ specifically gave little weight to the
2001 physical examination performed by Dr. Nate Barrett on the grounds that it
did not specifically address work-related impairments, the claimant's impairments
and symptoms had changed over the years, and claimant had worked at substantial
gainful activity levels for several years after the assessment. (Tr.24.) However,
the ALJ failed to discuss Dr. Pittman by name or reference the fact that he never
released Porter to return to work during the two year period he treated her. As Dr.
Pittman was a treating physician, the ALJ was required to provide specific and
legitimate reasons for discounting his finding that Porter's chronic back pain
prevented her from working. Colvin is correct that the ALJ could have considered
the one-page form filled out by Dr. Pittman and determined it was either unreliable
or outweighed by substantial evidence in the record. In fact, the ALJ did this in
regards to a June 2011 medical source statement, which the ALJ gave little weight
because it was not "accompanied by any significant explanation for the limitations
endorsed." (Tr.26.) But the ALJ did not specifically discount Dr. Pittman's
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findings or opinion and the Court cannot identify reasons for rejecting Dr.
Pittman's opinion that could have been provided by the ALl but were not. See

Stout v. Commr. o/Social Security, 454 F.3d 1050, 1054 (9th Cir. 2006); see also
Pinto v. Massannari, 249 F.3d 840,847 (9th Cir. 2001) (a reviewing court "cannot
affirm the decision of an agency on a ground that the agency did not invoke in
making its decision"). Therefore, the failure to address Dr. Pittman's opinion and
findings was in error.
Colvin contends that even if the ALl erred in not addressing the document,
the error was harmless because "it is clear from the record that the ALl's error was
inconsequential to the ultimate nondisability determination." Tommasetti v.

Astrue, 533 F.3d 1035,1038 (9th Cir. 2008). The Court cannot consider the error
harmless "unless it can confidently conclude that no reasonable ALl, when fully
crediting that [evidence], could have reached a different disability determination."

Stout, 454 F.3d at 1056. The Court cannot say that a reasonable ALl who fully
considered Dr. Pittman's opinion that Porter could not work for two years due to
her chronic back pain would necessarily reach the same disability determination as
the ALl did here. Therefore, this error is not harmless and the matter is remanded
for further proceeding consistent with this order. See Anderson v. Barnhart, 2004
WL 725373, *10 (N.D. Cal. 2004) (remanding for reconsideration where "the ALl
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failed to adequately explain his reasons for rejecting [treating physician's]
conclusions as to work restrictions and [Claimant's] testimony with respect to
extent and effect of his pain ....").
No objections were raised to Judge Lynch's determinations regarding the
ALl's consideration of the opinion of Dr. Scott Janke and Dr. Robert Hollis and
the Court finds no clear error with Judge Lynch's related analysis or conclusions.
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendation (Doc. 20) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiff's motion for summary judgment
(Doc. 12) is GRANTED. The decision of the Commissioner is REVERSED and
this matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings consistent with this order.
IT IS FURTHER ORDERED that Defendant's motion for summary
judgment (Doc. 16) is DENIED.
Dated this 29th day of May, 2014.

Hoy, District Judge
ates District Court

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