Mette v. Commissioner of Social Security
Filing
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ORDER Granting 13 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Aug 31, 2017
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SEAN F. MCAVOY, CLERK
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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JAMES METTE,
No. 1:16-CV-03142-JTR
Plaintiff,
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT
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v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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BEFORE THE COURT are cross-motions for summary judgment. ECF
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No. 13, 14. Attorney D. James Tree represents James Brian Mette (Plaintiff);
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Special Assistant United States Attorney L. Jamala Edwards represents the
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Commissioner of Social Security (Defendant). The parties have consented to
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proceed before a magistrate judge. ECF No. 4. After reviewing the administrative
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record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s
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Motion for Summary Judgment; DENIES Defendant’s Motion for Summary
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Judgment; and REMANDS the matter to the Commissioner for additional
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proceedings pursuant to 42 U.S.C. § 405(g).
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JURISDICTION
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Plaintiff filed applications for Supplemental Security Income (SSI) and
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Disability Insurance Benefits (DIB) on March 15, 2012, alleging disability since
ORDER GRANTING PLAINTIFF’S MOTION . . . - 1
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March 7, 2009 due to Crohn’s disease, ulcerative colitis, major depressive disorder,
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posttraumatic stress disorder (PTSD), obsessive compulsive disorder (OCD),
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severe chronic gastrointestinal problems, and regular/irregular heartbeat. Tr. 283-
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292, 328, 337. The applications were denied initially and upon reconsideration.
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Tr. 162-169, 171-183. Administrative Law Judge (ALJ) Stephanie Martz held a
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hearing on April 17, 2014 and took testimony from Plaintiff. Tr. 46-57. The ALJ
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then postponed the hearing to allow for additional evidence to be gathered and
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associated with the record. Tr. 54-56. The ALJ held a second hearing on July 25,
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2014 and took additional testimony from Plaintiff and vocational expert, Trevor
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Duncan. Tr. 58-89. The ALJ issued an unfavorable decision on August 29, 2014.
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Tr. 18-38. In her decision, the ALJ defined the relevant time period as May 7,
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2011 through the date of the decision, because Plaintiff had prior DIB and SSI
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applications that were denied on May 6, 2011. Tr. 18. The Appeals Council
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denied review on May 19, 2016. Tr. 1-6. The ALJ’s August 29, 2014 decision
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became the final decision of the Commissioner, which is appealable to the district
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court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review
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on July 22, 2016. ECF No. 1.
STATEMENT OF FACTS
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The facts of the case are set forth in the administrative hearing transcript, the
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ALJ’s decision, and the briefs of the parties. They are only briefly summarized
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here.
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Plaintiff was 37 years old on May 7, 2011. Tr. 283. The highest grade
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Plaintiff completed was the ninth in 1988. Tr. 329. He reported that he stopped
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working in March of 2009 due to his conditions. Tr. 328. Plaintiff’s work history
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includes the positions of grill cook, grocery stocker, pizza cook, prep cook, and
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selector. Tr. 316, 329.
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STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in
ORDER GRANTING PLAINTIFF’S MOTION . . . - 2
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medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,
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1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo,
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deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d
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1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is
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not supported by substantial evidence or if it is based on legal error. Tackett v.
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Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as
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being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put
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another way, substantial evidence is such relevant evidence as a reasonable mind
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might accept as adequate to support a conclusion. Richardson v. Perales, 402
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U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational
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interpretation, the court may not substitute its judgment for that of the ALJ.
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Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative
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findings, or if conflicting evidence supports a finding of either disability or non-
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disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d
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1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by
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substantial evidence will still be set aside if the proper legal standards were not
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applied in weighing the evidence and making the decision. Brawner v. Secretary
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of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).
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SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process
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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),
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416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one
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through four, the burden of proof rests upon the claimant to establish a prima facie
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case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This
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burden is met once the claimant establishes that physical or mental impairments
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prevent him from engaging in his previous occupations. 20 C.F.R. §§
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404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work,
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the ALJ proceeds to step five, and the burden shifts to the Commissioner to show
ORDER GRANTING PLAINTIFF’S MOTION . . . - 3
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that (1) the claimant can make an adjustment to other work, and (2) specific jobs
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exist in the national economy which the claimant can perform. Batson v. Comm’r
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of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If the claimant
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cannot make an adjustment to other work in the national economy, a finding of
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“disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
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ADMINISTRATIVE DECISION
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On August 29, 2014, the ALJ issued a decision finding Plaintiff was not
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disabled as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since May 7, 2011. Tr. 21.
At step two, the ALJ determined Plaintiff had the following severe
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impairments: affective disorder, anxiety disorder, and polysubstance use disorder.
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Tr. 21.
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At step three, the ALJ found Plaintiff did not have an impairment or
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combination of impairments that met or medically equaled the severity of one of
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the listed impairments. Tr. 28.
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At step four, the ALJ assessed Plaintiff’s residual function capacity to
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perform a full range of work at all exertional levels with the following non-
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exertional limitations: “He can understand, remember, and carry out simple
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routine tasks. He needs a routine and predictable work environment. He can have
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occasional contact with coworkers and supervisors but should not work with the
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general public.” Tr. 29. The ALJ identified Plaintiff’s past relevant work as short
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order cook, stock clerk, fast food cook, kitchen helper, industrial cleaner, saw
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operator, molder operator, and cashier II. Tr. 36. She concluded that Plaintiff was
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not able to perform any of his past relevant work. Id.
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At step five, the ALJ determined that, considering Plaintiff’s age, education,
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work experience and residual functional capacity, and based on the testimony of
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the vocational expert, there were other jobs that exist in significant numbers in the
ORDER GRANTING PLAINTIFF’S MOTION . . . - 4
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national economy Plaintiff could perform, including the jobs of production
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assembler, hand packager, and housekeeper. Tr. 38. The ALJ concluded Plaintiff
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was not under a disability within the meaning of the Social Security Act at any
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time from May 7, 2011, through the date of the ALJ’s decision, August 29, 2014.
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Id.
ISSUES
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The question presented is whether substantial evidence supports the ALJ’s
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decision denying benefits and, if so, whether that decision is based on proper legal
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standards. Plaintiff contends the ALJ erred by (1) failing to find Plaintiff had any
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physical impairments at step two and (2) failing to accord proper weight to the
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opinions if Thomas Genthe, Ph.D. and Angelo Ballasiotes, PharmD.
DISCUSSION
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A.
Step Two
Plaintiff argues that the ALJ errored at step two by finding that he did not
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have any medically determinable severe physical impairments. ECF No. 13 at 14-
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Step-two of the sequential evaluation process requires the ALJ to determine
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whether or not the claimant “has a medically severe impairment or combination of
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impairments.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation
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omitted). “An impairment or combination of impairments can be found ‘not
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severe’ only if the evidence establishes a slight abnormality that has ‘no more than
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a minimal effect on an individual[’]s ability to work.’” Id. at 1290. The step-two
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analysis is “a de minimis screening device to dispose of groundless claims.” Id. In
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her step two determination, the ALJ found that the evidence did not establish the
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existence of a medically determinable impairment. Tr. 27.
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An impairment “must result from anatomical, physiological, or
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psychological abnormalities which can be shown by medically acceptable clinical
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and laboratory diagnostic techniques.” 20 C.F.R. §§ 404.1508, 416.908 (2016).
ORDER GRANTING PLAINTIFF’S MOTION . . . - 5
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“A physical or mental impairment must be established by medical evidence
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consisting of signs, symptoms, and laboratory findings, not only by your statement
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of symptoms.” Id. 1 The regulations also stated that symptoms will not be found to
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affect a claimant’s ability to do basic work activities, “unless medical signs or
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laboratory findings show that a medically determinable impairment(s) is present.”
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20 C.F.R. §§ 404.1529(b), 416.929(b) (2016). 2 Signs are defined as “anatomical,
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physiological, or psychological abnormalities which can be observed, apart from
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your statements.” 20 C.F.R. §§ 404.1528(b), 416.928(b) (2016).3 Laboratory
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findings are defined as “anatomical, physiological, or psychological phenomena
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which can be shown by the use of a medically acceptable laboratory diagnostic
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As of March 27, 2017 20 C.F.R. §§ 404.1508, 416.908 was removed and
reserved and 20 C.F.R. §§ 404.1521, 416.921 was revised to state the following:
Your impairment(s) must result from anatomical, physiological, or
psychological abnormalities that can be shown by medically acceptable
clinical and laboratory diagnostic techniques. Therefore, a physical or
mental impairment must be established by objective medical evidence
from an acceptable medical source. We will not use your statement of
symptoms, a diagnosis, or a medical opinion to establish the existence
of an impairment(s). After we establish that you have a medically
determinable impairment(s), then we determine whether your
impairment(s) is severe.
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This regulation was also changed as of March 27, 2017, however the quoted
material remains.
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As of March 27, 2017, 20 C.F.R. §§ 404.1528, 416.928 was removed and
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reserved and 20 C.F.R. §§ 404.1502, 416.902 was amended to define signs as “one
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or more anatomical, physiological, or psychological abnormalities that can be
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observed, apart from your statements.”
ORDER GRANTING PLAINTIFF’S MOTION . . . - 6
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techniques.” 20 C.F.R. §§ 404.1528(c), 416.928(c) (2016).4
The ALJ found that Plaintiff did not have a physical medically determinable
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impairment because he did not have a diagnosis of Crohn’s disease for his
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abdominal symptoms, stating that “‘Abdominal pain’ is not a diagnosis.” Tr. 27.
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To summarize the extensive record in this case, the ALJ provided a chart including
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the date, location of treatment, citation to the record, and
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“Complaints/Assessment.” Tr. 22-26. The ALJ failed to consider the medical
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signs and laboratory findings associated with Plaintiff’s complaints of abdominal
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pain. See Tr. 27. This is error; therefore, the question becomes whether this is
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harmful error. An ALJ’s error can be considered harmless when “it is clear from
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the record that the . . . error was inconsequential to the ultimate nondisability
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determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
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Social Security Ruling (S.S.R.) 96-4p states “In claims in which there are no
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medical signs or laboratory findings to substantiate the existence of a medically
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determinable physical or mental impairment, the individual must be found not
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disabled at step 2 of the sequential evaluation process.” However, that is not the
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case here. The ALJ referenced the CT Plaintiff received in November of 2011
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focusing on the provider’s diagnosis of “Possible early diverticulitis,” to the
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exclusion of the objective results. Tr. 1410. The CT scan as read by Joseph
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Gouveia, M.D. showed “The bowel pattern demonstrates some mucosal thickening
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through the sigmoid portion of the colon with a few small diverticula,” and the
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impression included “findings suggest diverticulosis of the sigmoid colon.” Tr.
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As of March 27, 2017, 20 C.F.R. §§ 404.1528, 416.928 was removed and
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reserved and 20 C.F.R. §§ 404.1502, 416.902 was amended to define laboratory
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findings to as “one or more anatomical, physiological, or psychological
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phenomena that can be shown by the use of medically acceptable laboratory
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diagnostic techniques.”
ORDER GRANTING PLAINTIFF’S MOTION . . . - 7
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1432. Additionally, Dr. Gouveia found no evidence of definite Crohn’s disease.
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Id. The ALJ also relied on a colonoscopy performed by Robert Williams, M.D.
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and his statement that there was no evidence of Crohn’s diseases. Tr. 27.
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However, testing showed the presence of a benign precancerous adenoma. Tr.
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1638.
No Crohn’s disease does not equal no medically determinable impairment.
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Considering there are medical signs and laboratory findings that have lead medical
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providers to consider diverticulitis and a precancerous adenoma, this case is not
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lacking medical findings. Thus, there may be a medically determinable
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impairment, albeit undefined, because medical signs and laboratory findings show
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some kind of abnormality. Whether or not that abnormality can be considered
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severe is unaddressed in the ALJ’s decision because she refused to accept the
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medical signs and laboratory findings. As such, this is harmful error.
The case is remanded for the ALJ to address the medical signs and
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laboratory findings contained in the record and call a medical expert at a new
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hearing to determine if there is a physical medically determinable impairment and
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if any physical medical determinable impairment is severe.
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B.
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Medical Opinions
Plaintiff challenges the ALJ’s treatment of opinions of Thomas Genthe,
Ph.D. and Angelo Ballasiotes, Pharm.D. ECF No. 13 at 6-14.
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In weighing medical source opinions, the ALJ should distinguish between
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three different types of physicians: (1) treating physicians, who actually treat the
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claimant; (2) examining physicians, who examine but do not treat the claimant;
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and, (3) nonexamining physicians who neither treat nor examine the claimant.
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Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more
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weight to the opinion of a treating physician than to the opinion of an examining
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physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ
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should give more weight to the opinion of an examining physician than to the
ORDER GRANTING PLAINTIFF’S MOTION . . . - 8
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opinion of a nonexamining physician. Id.
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When an examining physician’s opinion is not contradicted by another
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physician, the ALJ may reject the opinion only for “clear and convincing” reasons,
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and when an examining physician’s opinion is contradicted by another physician,
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the ALJ is only required to provide “specific and legitimate reasons” to reject the
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opinion. Lester, 81 F.3d at 830-831. The specific and legitimate standard can be
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met by the ALJ setting out a detailed and thorough summary of the facts and
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conflicting clinical evidence, stating her interpretation thereof, and making
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findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is
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required to do more than offer her conclusions, she “must set forth [her]
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interpretations and explain why they, rather than the doctors’, are correct.”
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Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988).
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1.
Thomas Genthe, Ph.D.
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On April 6, 2014, Dr. Genthe completed a Psychological/Psychiatric
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Evaluation for the Washington State Department of Social and Health Services
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(DSHS). Tr. 1883-1889. He diagnosed Plaintiff with schizoaffective disorder,
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social anxiety disorder, OCD, and polysubstance use disorder in sustained
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remission. Tr. 1885. He opined that Plaintiff had a severe5 limitation in the
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abilities to complete a normal work day and work week without interruptions from
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psychologically based symptoms and to maintain appropriate behavior in a work
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setting. Tr. 1886. He also opined that plaintiff had a marked 6 level of impairment
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in the abilities to understand, remember, and persist in tasks by following detailed
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instructions, to perform activities within a schedule, maintain regular attendance,
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“‘Severe’ means the inability to perform the particular activity in regular
competitive employment or outside of a sheltered workshop.” Tr. 1885.
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“‘Marked’ means a very significant limitation on the ability to perform one
or more basic work activity.” Tr. 1885.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 9
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and be punctual within customary tolerances without special supervision, to adapt
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to changes in a routine work setting, and to communicate and perform effectively
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in a work setting. Tr. 1885-1886. Additionally, Dr. Genthe opined that Plaintiff
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had a moderate7 limitation in the abilities to understand, remember, and persist in
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tasks by following very short and simple instructions, to learn new tasks, to
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perform routine tasks without special supervision, to make simple work-related
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decisions, to be aware of normal hazards and take appropriate precautions, to ask
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simple questions or request assistance, and to set realistic goals and plan
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independently. Id. He further stated that Plaintiff’s ability to interact appropriately
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with the public, to get along with coworkers and/or peers, and to respond
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appropriately to criticism from supervisors was assessed as fair. Tr. 1886.
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The ALJ gave Dr. Genthe’s opinion no weight because (1) the marked and
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severe limitations he assessed were out of proportion to the medical evidence, (2)
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he relied on Plaintiff’s unreliable self-reports, and (3) he did not have the
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longitudinal history of Plaintiff’s impairments and knowledge of his substance
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abuse. Tr. 35.
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The ALJ’s first reason for rejecting Dr. Genthe’s opinion, that the opined
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limitations were out of proportion with the medical evidence, is not legally
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sufficient. The ALJ failed to state what evidence in the record was inconsistent
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with specific limitations. Tr. 35. The ALJ is required to do more than offer her
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conclusions, she “must set forth [her] interpretations and explain why they, rather
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than the doctors’, are correct.” Embrey, 849 F.2d at 421-422.
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The ALJ’s second reason for rejecting Dr. Genthe’s opinion, that he relied
on Plaintiff’s unreliable self-reports, is legally sufficient. A doctor’s opinion may
be discounted if it relies on a claimant’s unreliable self-report. Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005); Tommasetti v. Astrue, 533 F.3d at 1041. But
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“‘Moderate’ means there are significant limits on the ability to perform one
or more basic work activity.” Tr. 1885.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 10
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the ALJ must provide the basis for his conclusion that the opinion was based on a
claimant’s self-reports. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014).
Here, the ALJ states “Dr. Genthe admitted he did not have access to the claimant’s
treatment records. Thus, . . . he relied on the claimant’s presentation and his
subjective report of his medical history, symptoms, and limitations.” Tr. 35.
Plaintiff did not challenge the ALJ’s adverse credibility determination. ECF No.
13. As such, the ALJ second reason was legally sufficient.
The ALJ’s third reason for rejecting Dr. Genthe’s opinion, that he did not
have the longitudinal history of Plaintiff’s impairments and knowledge of his
substance abuse, is legally sufficient. The ALJ accurately represented Plaintiff’s
inconsistent statements regarding drug and alcohol use. Tr. 35. The fact that Dr.
Genthe could not take into account the critical issue of Plaintiff’s drug and alcohol
use, because Plaintiff failed to accurately report them, casts doubt on his diagnoses
and assessments of Plaintiff’s functional limitations. Plaintiff argues that drug and
alcohol use were not material to Plaintiff’s mental health limitations because all his
urine screening were negative for substances. ECF No. 13 at 10. However, the
extent to which a medical source is familiar with the other information in a
claimant’s case record is a factor the ALJ is to consider when weighing medical
opinions. 20 C.F.R. §§ 404.1527(c)(6); 416.927(c)(6) (2016).8 Considering Dr.
Genthe was unfamiliar with the evidence showing Plaintiff’s abuse of controlled
substances and longitudinal record, the ALJ did not error in providing his opinion
less weight.
While the ALJ errored in his first reason for providing Dr. Genthe’s opinion
less weight, he provided other legally sufficient reasons to support his
determination. This case is being remanded to address the physical impairments at
step two, the ALJ need not address the psychological opinions upon remand if she
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These regulations were amended as of March 27, 2017, however the
relevant text remains.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 11
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finds that the step two physical impairments will not have an effect on Plaintiff’s
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the psychological limitations.
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2.
Angelo Ballasiotes, Pharm.D.
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On September 24, 2013, Dr. Ballasiotes completed a mental residual
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functional capacity assessment. Tr. 1879-1881. He opined that Plaintiff had a
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severe9 limitation in the ability to complete a normal workday and workweek
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without interruptions from psychologically based symptoms and to perform at a
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consistent pace without an unreasonable number and length of rest periods. Tr.
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1880. He found Plaintiff was markedly 10 limited in the abilities to carry out
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detailed instructions, to maintain attention and concentration for extended periods,
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to work in coordination with or proximity to others without being distracted by
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them, to interact appropriately with the general public, to ask simple questions or
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request assistance, to be aware of normal hazards and take appropriate precautions,
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and to travel in unfamiliar places or use public transportation. Tr. 1879-1881. Dr.
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Ballasiotes also found that Plaintiff was moderately11 limited in the abilities to
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remember locations and work-like procedures, to understand and remember very
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short and simple instructions, to understand and remember detailed instructions, to
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carry out very short simple instructions, to perform activities within a schedule,
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maintain regular attendance and be punctual within customary tolerances, to
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Severely limited is defined as the “[i]nability to perform one or more basic
work-related activities.” Tr. 1879.
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Markedly limited is defined as “[v]ery significant interference with basic
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work-related activates i.e., unable to perform the described mental activity for
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more than 33% of the work day.” Tr. 1879.
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Moderately limited is defined as “[s]ignificant interference with basic
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work-related activities i.e., unable to perform the described mental activity for at
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least 20% of the work day up to 33% of the work day.” Tr. 1879.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 12
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sustain an ordinary routine without special supervision, to accept instructions and
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respond appropriately to criticism from supervisors, to maintain socially
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appropriate behavior and to adhere to basic standards of neatness and cleanliness,
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and to set realistic goals or make plans independently of others. Id. He concluded
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the opinion by stating “[t]his document was completed with input from the client,
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Mr. James Mette, with assistance from his mental health case manager.” Tr. 1881.
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The ALJ gave Dr. Ballasiotes’s opinion no weight because (1) the marked and
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severe limitations were out of proportion to the treatment records and (2) the form
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was completed with input from Plaintiff. Tr. 35.
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Dr. Ballasiotes is a pharmacist, not a medical doctor, and, therefore, is not an
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acceptable medical source. See 20 C.F.R. §§ 404.1513(a), 416.913(a) (2016).12
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Generally, the ALJ should give more weight to the opinion of an acceptable medial
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source than to the opinion of an “other source,” such as a pharmacist. 20 C.F.R. §§
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404.1513, 416.913 (2016).13 An ALJ is required, however, to consider evidence
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from “other sources,” 20 C.F.R. §§ 404.1513(d), 416.913(d) (2016),14 “as to how
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an impairment affects a claimant’s ability to work,” Sprague, 812 F.2d at 1232. An
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ALJ must give “germane” reasons to discount evidence from “other sources.”
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Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). Germane reasons to discount an
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opinion include contradictory opinions and lack of support in the record. Thomas
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12
On March 27, 2017, these regulations were amended and the definitions of
an acceptable medical source now appear in 20 C.F.R. §§ 404.1502(a), 416.902(a).
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On March 27, 2017, these regulations were amended and instructions on
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how to weigh evidence for cases filed before March 27, 2017 now appear in 20
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C.F.R. §§ 404.1527, 416.927.
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14
On Marcy 27, 2017, these regulations were amended and the instructions
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on how to weigh “other sources” now appear at 20 C.F.R. §§ 404.1527(f),
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416.927(f).
ORDER GRANTING PLAINTIFF’S MOTION . . . - 13
1
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v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
The ALJ’s reasons for rejecting Dr. Ballasiotes’s opinion, are legally
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sufficient. The reasons are germane to Dr. Ballasiotes’s opinion. As such, the ALJ
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did not error in his treatment of the opinion. This case is being remanded to
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address the physical impairments at step two, the ALJ need not address the
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psychological opinions upon remand if she finds that the step two physical
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impairments will have no effect on Plaintiff’s the psychological limitations.
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REMEDY
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The decision whether to remand for further proceedings or reverse and
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award benefits is within the discretion of the district court. McAllister v. Sullivan,
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888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate
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where “no useful purpose would be served by further administrative proceedings,
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or where the record has been thoroughly developed,” Varney v. Secretary of Health
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& Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused
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by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280
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(9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)
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(noting that a district court may abuse its discretion not to remand for benefits
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when all of these conditions are met). This policy is based on the “need to
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expedite disability claims.” Varney, 859 F.2d at 1401. But where there are
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outstanding issues that must be resolved before a determination can be made, and it
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is not clear from the record that the ALJ would be required to find a claimant
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disabled if all the evidence were properly evaluated, remand is appropriate. See
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Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211
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F.3d 1172, 1179-80 (9th Cir. 2000).
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In this case, it is not clear from the record that the ALJ would be required to
26
find Plaintiff disabled if all the evidence were properly evaluated. Further
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proceedings are necessary for the ALJ to determine whether the medical signs and
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laboratory findings support the finding of a medically determinable severe
ORDER GRANTING PLAINTIFF’S MOTION . . . - 14
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impairment and whether that impairment(s) is severe at step two. The ALJ will
2
call a medical expert to testify regarding Plaintiff’s physical impairments and
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resulting limitations. The ALJ is then instructed to make new step three, four, and
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five determinations based on the new step two determination.
CONCLUSION
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Accordingly, IT IS ORDERED:
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1.
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Defendant’s Motion for Summary Judgment, ECF No. 14, is
DENIED.
2.
Plaintiff’s Motion for Summary Judgment, ECF No. 13, is
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GRANTED, in part, and the matter is REMANDED to the Commissioner for
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additional proceedings consistent with this Order.
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3.
Application for attorney fees may be filed by separate motion.
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The District Court Executive is directed to file this Order and provide a copy
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to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff
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and the file shall be CLOSED.
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DATED August 31, 2017.
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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE
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ORDER GRANTING PLAINTIFF’S MOTION . . . - 15
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