Daugherty v. Colvin

Filing 27

ORDER granting in part ECF No. 15 Plaintiff's Motion for Summary Judgment; denying ECF No. 25 Defendant's Motion for Summary Judgment. Matter is Remanded to the Commissioner for additional proceedings consistent with this Order. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

1

FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

2
3

Feb 12, 2018

4

SEAN F. MCAVOY, CLERK

5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8
9
10

LAFE EDWARD DAUGHERTY,
Plaintiff,

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT

11
12
13
14
15

No.2:16-CV-00408-JTR

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

16
17

BEFORE THE COURT are cross-motions for summary judgment. ECF

18

Nos. 15, 25. Attorney Dana C. Madsen represents Lafe Edward Daugherty

19

(Plaintiff); Special Assistant United States Attorney Summer Stinson represents the

20

Commissioner of Social Security (Defendant). The parties have consented to

21

proceed before a magistrate judge. ECF No. 6. After reviewing the administrative

22

record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s

23

Motion for Summary Judgment; DENIES Defendant’s Motion for Summary

24

Judgment; and REMANDS the matter to the Commissioner for additional

25

proceedings pursuant to 42 U.S.C. § 405(g).

26

JURISDICTION

27

Plaintiff filed applications for Supplemental Security Income (SSI) and

28

Disability Insurance Benefits (DIB) on November 22, 2013, Tr. 75, alleging

ORDER GRANTING PLAINTIFF’S MOTION . . . - 1

1

disability since January 1, 2008, Tr. 167, 173, due to seizures, depression, a back

2

injury, epilepsy, and polymicrogyria. Tr. 214. The applications were denied

3

initially and upon reconsideration. Tr. 102-09, 113-23. Administrative Law Judge

4

(ALJ) Donna L. Walker held a hearing on January 20, 2016 and heard testimony

5

from Plaintiff, medical expert, Ronald Devere, M.D., and vocational expert,

6

Richard Cheney. Tr. 39-74. At the hearing, the ALJ granted Plaintiff’s motion to

7

withdraw his Request for Hearing on the DIB claim. Tr. 41-42. The DIB claim

8

was dismissed and the hearing continued as an SSI only claim with an application

9

date of November 22, 2013.1 Id. The ALJ issued an unfavorable decision on

10

February 8, 2016. Tr. 23-24. The Appeals Council denied review on September

11

28, 2016. Tr. 1-7. The ALJ’s February 8, 2016 decision became the final decision

12

of the Commissioner, which is appealable to the district court pursuant to 42

13

U.S.C. § 405(g). Plaintiff filed this action for judicial review on November 21,

14

2016. ECF Nos. 1, 4.
STATEMENT OF FACTS

15

The facts of the case are set forth in the administrative hearing transcript, the

16
17

ALJ’s decision, and the briefs of the parties. They are only briefly summarized

18

here.

19

Plaintiff was 39 years old at the date of application. Tr. 167. He completed

20

the twelfth grade in 1992. Tr. 215. His reported work history includes the jobs of

21

inspector and machine operator. Tr. 197, 215. Plaintiff reported that he stopped

22

working on January 1, 2008 due to his conditions. Tr. 214.

23
24

1

It is unclear whether Plaintiff’s appeal to this Court includes his DIB Claim.

25

His Complaint specifically requests this Court set aside the Commissioner’s

26

decision in both the DIB and the SSI claims, ECF No. 4 at 2, but Plaintiff’s

27

briefing only addresses the SSI claim, ECF No. 15 at 1. This order will address

28

both the DIB and the SSI claims.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 2

1
2

STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in

3

medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

4

1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo,

5

deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d

6

1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is

7

not supported by substantial evidence or if it is based on legal error. Tackett v.

8

Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as

9

being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put

10

another way, substantial evidence is such relevant evidence as a reasonable mind

11

might accept as adequate to support a conclusion. Richardson v. Perales, 402

12

U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational

13

interpretation, the court may not substitute its judgment for that of the ALJ.

14

Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative

15

findings, or if conflicting evidence supports a finding of either disability or non-

16

disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d

17

1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial

18

evidence will be set aside if the proper legal standards were not applied in

19

weighing the evidence and making the decision. Brawner v. Secretary of Health

20

and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).

21

SEQUENTIAL EVALUATION PROCESS

22

The Commissioner has established a five-step sequential evaluation process

23

for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen

24

v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of

25

proof rests upon the claimant to establish a prima facie case of entitlement to

26

disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the

27

claimant establishes that physical or mental impairments prevent him from

28

engaging in his previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant

ORDER GRANTING PLAINTIFF’S MOTION . . . - 3

1

cannot do his past relevant work, the ALJ proceeds to step five, and the burden

2

shifts to the Commissioner to show that (1) the claimant can make an adjustment to

3

other work, and (2) specific jobs which the claimant can perform exist in the

4

national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194

5

(9th Cir. 2004). If the claimant cannot make an adjustment to other work in the

6

national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v).

7
8
9
10
11
12
13

ADMINISTRATIVE DECISION
On February 8, 2016, the ALJ issued a decision finding Plaintiff was not
disabled as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since January 3, 1999, the original alleged date of onset. Tr. 25.
At step two, the ALJ determined Plaintiff had a severe impairment of
“history of a seizure disorder.” Tr. 25.

14

At step three, the ALJ found Plaintiff did not have an impairment or

15

combination of impairments that met or medically equaled the severity of one of

16

the listed impairments. Tr. 28.

17

At step four, the ALJ assessed Plaintiff’s residual function capacity and

18

determined he could perform a range of work at the medium exertional level with

19

the following limitations:

20
21
22
23
24
25
26
27
28

the ability to lift and/or carry up to 50 pounds occasionally (1/3 of the
workday) and 25 pounds frequently (2/3 of the workday); stand and/or
walk up to 6 hours; and sit up to 6 hours. He has an unlimited ability
to use bilateral upper extremities for pushing and pulling (other than as
stated for lifting and carrying); unlimited ability to reach in all
directions, including overhead bilaterally; unlimited use of bilateral
hands for handling (gross manipulation), fingering (fine manipulation),
and feeling (skin receptors); unlimited postural ability to balance, stoop
(including bending at the waist), kneel or crouch (including bending at
the knees) and frequently climb ramps, stairs, or crawl but never climb
ladders, ropes or scaffolds; unlimited visual and communicative
abilities; unlimited environmental exposure to exposure to [sic.]

ORDER GRANTING PLAINTIFF’S MOTION . . . - 4

extreme cold, extreme heat, wetness, humidity, noise, fumes, odors,
dusts, gases, or poor ventilation but should avoid concentrated exposure
to vibration and hazards (such as machinery and heights). He can have
superficial contact with the general public, could work in proximity to
but not close cooperation with co-workers and supervisors, and would
work best in a job with routine predictable tasks with clearly set goals
and expectation.

1
2
3
4
5
6

Tr. 28-29. The ALJ concluded that Plaintiff did not have past relevant work. Tr.

7

32.

8
9

At step five, the ALJ determined that, considering Plaintiff’s age, education,
work experience and residual functional capacity, and based on the testimony of

10

the vocational expert, there were other jobs that exist in significant numbers in the

11

national economy Plaintiff could perform, including the jobs of pile setter 2, store

12

laborer, and janitor. Tr. 33. The ALJ concluded Plaintiff was not under a

13

disability within the meaning of the Social Security Act at any time from January

14

3, 1999, through the date of the ALJ’s decision. Tr. 33.

15

ISSUES

16

The question presented is whether substantial evidence supports the ALJ’s

17

decision denying benefits and, if so, whether that decision is based on proper legal

18

standards. Plaintiff contends the ALJ erred by (1) failing to make a proper step

19

two determination, (2) failing to make a proper step three determination, (3) failing

20

to properly weigh Plaintiff’s symptom statements, and (4) failing to properly weigh

21

the medical opinions in the record.

22

1.

23

Step Two
Plaintiff challenges the ALJ’s step two determination alleging that she erred

24
25

2

At the hearing, the vocational expert testified that Plaintiff could perform

26

the job of “tile fitter,” not “pile setter.” Upon remand, the ALJ is to accurately

27

reproduce the vocational expert’s testimony if she relies on it in making her

28

determination.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 5

1

by finding Plaintiff’s mental health impairments and back/lumbar spine

2

impairment nonsevere. ECF No. 15 at 12-13.

3

The step-two analysis is “a de minimis screening device used to dispose of

4

groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An

5

impairment is “not severe” if it does not “significantly limit” the ability to conduct

6

“basic work activities.” 20 C.F.R. § 416.922(a). Basic work activities are

7

“abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.922(b). “An

8

impairment or combination of impairments can be found not severe only if the

9

evidence establishes a slight abnormality that has no more than a minimal effect on

10

an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.

11

1996) (internal quotation marks omitted).

12

A.

Mental Health Impairments

13

The ALJ found Plaintiff’s mental health impairments to be nonsevere. Tr.

14

26. In doing so, she discounted the opinion of examining psychologist, John

15

Arnold, Ph.D. Tr. 26-28.

16

On January 13, 2016, Dr. Arnold evaluated Plaintiff, reviewed his medical

17

records, and administered a Millon Clinical Multi-Axial Inventory, third edition

18

(MCMI-III) and a mental status exam. Tr. 424-31. Dr. Arnold diagnosed Plaintiff

19

with early onset persistent depressive disorder, generalized social phobia, schizoid

20

personality disorder with dependent, depressive, and passive-aggressive features,

21

and rule out somatic symptom disorder. Tr. 428. He opined that Plaintiff had a

22

marked limitation in two areas of mental functioning and a moderate limitation in

23

seven areas of mental functioning. Tr. 429-31.

24

The ALJ gave this opinion little weight because (1) the opinion was not

25

supported by the evaluation, (2) it was inconsistent with Plaintiff’s reported

26

activities, and (3) there was no basis for the opined limitations in the abilities to

27

accept instructions and respond to criticism. Tr. 28.

28

An examining physician’s opinion that is not contradicted by another

ORDER GRANTING PLAINTIFF’S MOTION . . . - 6

1

physician, can only be rejected for “clear and convincing” reasons. Lester v.

2

Chater, 81 F.3d 821, 830 (9th Cir. 1995). Likewise an examining physician’s

3

opinion that is contradicted by another physician, can only be rejected for “specific

4

and legitimate reasons.” Id. at 830-31. The specific and legitimate standard can be

5

met by the ALJ setting out a detailed and thorough summary of the facts and

6

conflicting clinical evidence, stating her interpretation thereof, and making

7

findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is

8

required to do more than offer her conclusions, she “must set forth [her]

9

interpretations and explain why they, rather than the doctors’, are correct.”

10
11

Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).
None of the reasons provided by the ALJ meet the lesser standard of specific

12

and legitimate. First, the ALJ found that the opinion was not supported by the

13

claimant’s mental status examination, his reports during the evaluation, or his

14

mildly elevated scores. Tr. 28. Plaintiff’s mental status exam showed his mood to

15

be severely anxious and mildly depressed with a moderately constricted affect. Tr.

16

426. Otherwise the rest of the exam was within normal limits. Id. The MCMI-III

17

showed a valid and reliable score that evidenced a mild clinical elevation

18

supporting persistent depressive disorder, which is characterized as “two or more

19

years of fairly continuous depressive symptoms.” Tr. 427. The test also showed

20

severely elevated scores on the anxiety scale consistent with “overall arousal and

21

general angst.” Id. Additionally, the test showed significant elevations on both the

22

schizoid and dependent scales. Id. Dr. Arnold stated that “[t]hese scale elevations

23

appear consistent with his self-reported chronic social alienation.” Id.

24

In finding that the mental status exam, Tr. 426, was inconsistent with the

25

opinion, the ALJ failed to draw any connection between the results of the mental

26

status exam and the opined limitations and explain how they are inconsistent. Tr.

27

28. Likewise, the ALJ found Plaintiff’s statements and the results of the MCMI-

28

III, Tr. 427, were inconsistent with the opinion without providing any explanation.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 7

1

Tr. 28. The ALJ simply asserted these were inconsistent with the opinion. Id.

2

This is not sufficient to meet the specific and legitimate standard under Magallanes

3

and Embrey.

4

Second, the ALJ found that Dr. Arnold’s opinion was inconsistent with

5

Plaintiff’s reported activities, more specifically that “a life revolving around video

6

gaming with others does not substantiated [sic.] marked limitations for working in

7

coordination with others.” Tr. 28. This is not supported by substantial evidence.

8

In addressing Plaintiff’s activities of daily living, Dr. Arnold stated:

9
10
11
12
13
14
15
16
17

Mr. Daugherty’s lifestyle appears to adhere to a more textbook schizoid
and dependent pattern. He has lived with his sister and brother-in-law
since 1999. He added it is hard to get along with these people at times
(who have let him live with them the past 15-16 years). He is a selfdescribed night person, who gets up between midnight and 2am. He has
a penchant for “MMO” on-line multiplayer video games. In point of
fact aside from one close friend, these on-line relationships of sorts
constitute his social life. He especially likes Star Trek-related games,
and is an admitted ‘Trekie.’ Outside of his 3-D computer artwork, Mr.
Daugherty endorsed investing eight to nine hours a day playing these
games. The rest of his time is usually divided between watching TV and
doing his leatherwork.

18
19

Tr. 427. Dr. Arnold found that Plaintiff had a marked limitation in the ability to

20

work in coordination with or proximity to others without being distracted by them.

21

Tr. 430. A marked limitation is defined as a “[f]requent interference on the ability

22

to function in a work setting (i.e., 1/3 to 2/3 of an 8 hour workday).” Tr. 429.

23

Despite the ALJ’s assertion otherwise, an inability to work in proximity to others is

24

not inconsistent with an individual whose social life is limited to online-gaming.

25

As such, this was an error.

26

Third, the ALJ found that there was no basis for Dr. Arnold’s opinion that

27

Plaintiff had marked limitations in accepting instructions and responding to

28

criticism. Tr. 28 referring to Tr. 430. Once again, the ALJ simply stated “there is

ORDER GRANTING PLAINTIFF’S MOTION . . . - 8

1

no basis for Dr. Arnold’s speculation that the claimant was markedly limited for

2

accepting instructions and responding to criticism.” Tr. 28. A mere conclusion

3

that the limitation is unsupported is insufficient to meet the specific and legitimate

4

standard. See Embrey, 849 F.2d at 421-22. Additionally, the results from the

5

MCMI-III administered by Dr. Arnold appear to support limitations in regards to

6

social functioning, “[t]hese scale elevations appear consistent with his self-reported

7

chronic social alienation,” and “a relatively lower level of confidence, his profile

8

also suggests mild depressive and passive-aggressive features.” Tr. 427. The

9

medical expert, a neurologist, who testified at the hearing, did not have access to

10

Dr. Arnold’s report. Tr. 43-44. Without expert testimony the ALJ is not in a

11

position to decipher how a score on the MCMI-III would correlate with mental

12

functional limitations, specifically the abilities to accept instructions and respond

13

to criticism. See Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (the ALJ

14

“must be careful not to succumb to the temptation to play doctor”). In conclusion,

15

the ALJ failed to provide legally sufficient reason supported by substantial

16

evidence to reject Dr. Arnold’s opinion.

17

Because the finding of no impairment relies upon the erroneous rejection of

18

a medical opinion supporting the impairment the ALJ’s step two determination was

19

an error. Defendant argues that even if there was an error at step two, that error

20

would be harmless. ECF No. 25 at 6. Defendant is accurate that a step two error

21

can be harmless when step two is resolved in the claimant’s favor. See Burch v.

22

Barnhart, 400 F.3d 676, 682 (9th Cir. 2005); see also Molina v. Astrue, 674 F.3d

23

1104, 1115 (9th Cir. 2012) (holding that “in each case we look at the record as a

24

whole to determine whether the error alters the outcome of the case.”).

25

In this case, despite the ALJ’s step two determination, the residual functional

26

capacity determination addressed mental health limitations: “He can have

27

superficial contact with the general public, could work in proximity to but not

28

close cooperation with co-workers and supervisors, and would work best in a job

ORDER GRANTING PLAINTIFF’S MOTION . . . - 9

1

with routine predictable tasks with clearly set goals and expectation.” Tr. 29.

2

Therefore, Defendant’s argument that the ALJ’s error was harmless is not without

3

merit. However, the ALJ’s error was not just his step determination, but his

4

rejection of Dr. Arnold’s opinion, which included more severe limitations than

5

addressed in the residual function determination at step four. Therefore, the ALJ’s

6

error was not harmless and the case is remanded for the ALJ to readdress Dr.

7

Arnold’s opinion and make a new step two determination.

8

B.

9

Plaintiff challenges the ALJ’s determination that his back/lumbar spine

10
11

Back/Lumbar Spine Impairment

impairment is nonsevere. ECF No. 15 at 13.
The record shows that on June 7, 2004, G.W. Bagby, M.D. completed an

12

evaluation of Plaintiff for the Washington Department of Social and Health

13

Services (DSHS). Tr. 291-96. As part of the evaluation, Dr. Bagby ordered x-rays

14

of Plaintiff’s lumbar spine, which revealed “[m]oderate degenerative facet disease

15

at L5-S1.” Tr. 294. Dr. Bagby opined that Plaintiff’s physical problems stem from

16

his seizures and inguinal hernia and he was able to do light work. Tr. 293.

17

Plaintiff complained of some low back pain to J. Robert Clark, M.D. on November

18

29, 2004. Tr. 336. On May 15, 2014, June 19, 2014, and March 26, 2015,

19

Plaintiff’s symptom complaints were negative for back pain. Tr. 409, 412, 418.

20

On December 30, 2015, Plaintiff reported upper back pain since 1999. Tr. 425.

21

The ALJ found Plaintiff’s back/lumbar spine impairment to be a nonsevere.

22

Tr. 26. He acknowledged that x-rays from June of 2004 showed moderate

23

degenerative facet disease at L5-S1, but found that Plaintiff failed to seek any

24

treatment for back pain since his amended alleged disability onset date of

25

November 22, 2013. Id.

26

The ALJ is accurate that one abnormal x-ray that predates the relevant time

27

period without more is not sufficient to support a severe impairment at step two as

28

there is little evidence to support the notion that the impairment affects Plaintiff’s

ORDER GRANTING PLAINTIFF’S MOTION . . . - 10

1

ability to work during the relevant time period. See 20 C.F.R. §§ 416.921;

2

416.922. In the decision, the ALJ found that the 2004 x-rays predated Plaintiff’s

3

amended onset date of November 22, 2013. Tr. 26. However, her decision is

4

clearly for January 3, 1999 to February 8, 2016. Tr. 28-33. While the evidence of

5

Plaintiff’s back pain may be limited, the x-rays do not predated the period

6

addressed by the ALJ’s decision. Therefore, on remand, the ALJ will accurately

7

define the relevant time period and determine an onset date that is supported by the

8

record as a whole under S.S.R. 83-20 and address Plaintiff’s back/lumbar spine

9

impairment anew in the context of a clearly defined relevant time period.

10
11
12
13

2.

Step Three
Plaintiff alleges that the ALJ failed to consider Plaintiff’s focal seizures

when considering listings at step three. ECF No. 15 at 15.
In her decision, the ALJ addressed Listings 11.02 and 11.03. Tr. 28. Listing

14

11.02 addresses convulsive epilepsy, including grand mal and psychomotor

15

seizures, and Listing11.03 addresses nonconvulsive epilepsy, including petit mal,

16

psychomotor, or focal seizures. 20 C.F.R. § 404, Subpart P, App. 1, Listing 11.00

17

(2016). 3 The ALJ considered the frequency of Plaintiff’s grand mal seizure

18

activity when addressing the listings, but did not address Plaintiff’s alleged

19

nonconvulsive seizures or their alleged frequency. Tr. 28. Evidence in the file and

20
21

3

On July 1, 2016, Social Security issued the Revised Medical Criteria for

22

Evaluating Neurological Disorders. Listing 11.03 was removed and reserved and

23

Listing 11.02 was expanded to cover all seizure activity. See Revised Medical

24

Criteria for Evaluating Neurological Disorders, 81 Fed. Reg. 43048 (July 1, 2016),

25

available at 2016 WL 3551949. The new listings took effect on September 29,

26

2016. Id. The Revised Medical Criteria for Evaluating Neurological Disorders

27

directs reviewing courts to review the Commissioner’s final decisions using the

28

listing that was in effect at the time the decisions were issued. Id.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 11

1

the expert testimony at the hearing suggests that additional medical evidence is

2

necessary to establish the existence of these focal seizures. Tr. 52, 393. However,

3

the ALJ’s decision found “history of a seizure disorder” as a severe impairment at

4

step two and the ALJ’s decision failed to address these alleged focal seizures. Tr.

5

25. This was error. Therefore, upon remand, the ALJ will readdress step three and

6

the ALJ will address Plaintiff’s alleged nonconvulsive seizures.

7

3.

8
9

Plaintiff’s Symptom Statements
Plaintiff contests the ALJ’s determination that Plaintiff’s symptom

statements were less than fully credible. ECF NO. 15 at 15-17.

10

It is generally the province of the ALJ to make credibility determinations,

11

Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific

12

cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent

13

affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s

14

testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281;

15

Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ must

16

identify what testimony is not credible and what evidence undermines the

17

claimant’s complaints.” Lester, 81 F.3d at 834.

18

The ALJ found Plaintiff’ symptom statements to be less than fully credible

19

concerning the intensity, persistence, and limiting effects of his symptoms. Tr. 30.

20

The ALJ reasoned that Plaintiff was less than fully credible because (1) his medical

21

records contradicted his allegations, (2) he did not follow prescribed treatment, and

22

(3) his report of going to bed around noon and rising at midnight contradicted his

23

alleged sleep difficulties.

24

The evaluation of a claimant’s symptom statements and their resulting

25

limitations relies, in part, on the assessment of the medical evidence. See 20

26

C.F.R. § 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being remanded

27

for the ALJ to address the medical source opinions in the file, a new assessment of

28

Plaintiff’s subjective symptom statements is necessary in accord with S.S.R. 16-3p.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 12

1
2

4.

Medical Opinions
Plaintiff argues the ALJ failed to properly consider and weigh the medical

3

opinions expressed by Ronald Devere, M.D., J. Robert Clark, M.D., and Diane

4

Beernink, ARNP. ECF No. 15 at 17-19.

5

In weighing medical source opinions, the ALJ should distinguish between

6

three different types of physicians: (1) treating physicians, who actually treat the

7

claimant; (2) examining physicians, who examine but do not treat the claimant;

8

and, (3) nonexamining physicians who neither treat nor examine the claimant.

9

Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a

10

treating physician than to the opinion of an examining physician. Orn v. Astrue,

11

495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ should give more weight to

12

the opinion of an examining physician than to the opinion of a nonexamining

13

physician. Id.

14

When a treating physician’s opinion is not contradicted by another

15

physician, the ALJ may reject the opinion only for “clear and convincing” reasons.

16

Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating

17

physician’s opinion is contradicted by another physician, the ALJ is only required

18

to provide “specific and legitimate reasons” for rejecting the opinion. Murray v.

19

Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining

20

physician’s opinion is not contradicted by another physician, the ALJ may reject

21

the opinion only for “clear and convincing” reasons, and when an examining

22

physician’s opinion is contradicted by another physician, the ALJ is only required

23

to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.3d

24

at 830-31.

25

The specific and legitimate standard can be met by the ALJ setting out a

26

detailed and thorough summary of the facts and conflicting clinical evidence,

27

stating her interpretation thereof, and making findings. Magallanes, 881 F.2d at

28

751. The ALJ is required to do more than offer her conclusions, she “must set

ORDER GRANTING PLAINTIFF’S MOTION . . . - 13

1

forth [her] interpretations and explain why they, rather than the doctors’, are

2

correct.” Embrey, 849 F.2d at 421-22.

3

A.

4

Dr. Devere testified at the January 20, 2016 hearing and found Plaintiff

Ronald Devere, M.D.

5

capable of medium work. Tr. 48-49. The ALJ discussed the opinion, but failed to

6

provide any specific weight to it in her decision. Tr. 31-32. Considering the case

7

is being remanded for the ALJ to make a new step two determination, upon

8

remand, the ALJ will address the opinion and provide it specific weight.

9

B.

J. Robert Clark, M.D.

10

Dr. Clark provided opinions in May of 2004 and March of 2005 that

11

Plaintiff was able to perform medium work. Tr. 325-28, 341-44. The ALJ gave

12

these opinions significant weight. Tr. 32. Despite this, the ALJ appeared to

13

overlook Dr. Clark’s opinion that Plaintiff had a marked limitation in the abilities

14

to communicate and understand or following directions in the May 2004 opinion,

15

Tr. 327, and a moderate limitation in the same areas in the March 2005 opinion.

16

Tr. 434. Social Security Ruling (S.S.R.) 96-8p states that the residual functional

17

capacity assessment “must always consider and address medical source opinions.

18

If the [residual functional capacity] assessment conflicts with an opinion from a

19

medical source, the adjudicator must explain why the opinion was not adopted.”

20

Here the ALJ failed to state why this portion of Dr. Clark’s opinion was omitted

21

from the residual functional capacity determination when he gave the opinions

22

significant weight. Therefore, upon remand, the ALJ will readdress Dr. Clark’s

23

opinions.

24

C.

25

On September 18, 2013, Nurse Beernink completed a Physical Functional

Diane Beernink, ARNP

26

Evaluation form for DSHS in which she opined that Plaintiff was limited to

27

sedentary work and had a marked limitation in sitting, standing, walking, lifting,

28

carrying, handling, pushing, pulling, reaching, stooping crouching, seeing, hearing,

ORDER GRANTING PLAINTIFF’S MOTION . . . - 14

1

and communicating. Tr. 392-93. She stated that Plaintiff needed a neurological

2

consultation with an EEG to determine whether or not Plaintiff was having

3

seizures. Tr. 393.

4

The ALJ gave this opinion little weight because Plaintiff had not taken his

5

medication since early 2011 and despite the lack of medication, Plaintiff’s seizure

6

activity was limited to every six months. Tr. 32. The Court acknowledges that

7

Nurse Beernink is not an acceptable medical source under the regulations as of the

8

date of the ALJ’s decision and, as so, the ALJ was only required to provide

9

germane reasons for rejecting her opinion. 20 C.F.R. § 416.913(a) (2016)4;

10

Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). However, considering the case is

11

being remanded for the ALJ to make a new step two determination and address

12

Plaintiff’s alleged focal seizures with more specificity, the ALJ will readdress

13

Nurse Beernink’s opinion.

14

REMEDY

15

The decision whether to remand for further proceedings or reverse and

16

award benefits is within the discretion of the district court. McAllister v. Sullivan,

17

888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate

18

where “no useful purpose would be served by further administrative proceedings,

19

or where the record has been thoroughly developed,” Varney v. Secretary of Health

20

& Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused

21

by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280

22

(9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)

23
24

4

On March 27, 2017, this regulation was amended and the definitions of an

25

acceptable medical source now appear in 20 C.F.R. § 416.902(a) and in claims

26

filed with the agency after March 27, 2017, a nurse practitioner will be considered

27

an acceptable medical source. Since Plaintiff filed this claim in 2013, this new rule

28

is not applicable.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 15

1

(noting that a district court may abuse its discretion not to remand for benefits

2

when all of these conditions are met). This policy is based on the “need to

3

expedite disability claims.” Varney, 859 F.2d at 1401. But where there are

4

outstanding issues that must be resolved before a determination can be made, and it

5

is not clear from the record that the ALJ would be required to find a claimant

6

disabled if all the evidence were properly evaluated, remand for further

7

proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th

8

Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000).

9

In this case, it is not clear from the record that the ALJ would be required to

10

find Plaintiff disabled if all the evidence were properly evaluated. Further

11

proceedings are necessary for the ALJ to address the opinion of Dr. Arnold and

12

make a new step two determination, accurately identify the relevant time period in

13

the case, consider whether there is objective medical evidence to support the

14

Plaintiff’s alleged focal seizures in order to make a new step three determination,

15

readdress Plaintiff’s symptom statements, and properly address all the medical

16

source opinions in the file. Additionally, the ALJ will need to supplement the

17

record with any outstanding evidence and call a medical, a psychological, and a

18

vocational expert to testify at a new hearing.

19

Considering Plaintiff was unclear as to his intentions regarding the

20

resurrection of his DIB claim on this appeal, the Commissioner will set aside

21

Plaintiff’s withdrawal of his Request for Hearing in the DIB claim and consider

22

both the DIB and the SSI claims upon remand. If it was not Plaintiff’s intention to

23

appeal the DIB claim, on remand he can renew his motion to withdraw his Request

24

for Hearing.
CONCLUSION

25
26

Accordingly, IT IS ORDERED:

27

1.

28

Defendant’s Motion for Summary Judgment, ECF No. 25, is

DENIED.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 16

1

2.

Plaintiff’s Motion for Summary Judgment, ECF No. 15, is

2

GRANTED, in part, and the matter is REMANDED to the Commissioner for

3

additional proceedings consistent with this Order.

4

3.

Application for attorney fees may be filed by separate motion.

5

The District Court Executive is directed to file this Order and provide a copy

6

to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff

7

and the file shall be CLOSED.

8

DATED February 12, 2018.

9
10
11

_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING PLAINTIFF’S MOTION . . . - 17