Vert v. Colvin

Filing 16

ORDER re 3 Complaint filed by Richard Vert. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order by Judge J Richard Creatura. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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RICHARD VERT,

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Plaintiff,

CASE NO. 2:15-cv-00279 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 11, 14, 15).

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After considering and reviewing the record, the Court concludes that the ALJ
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erred in failing to address the most recent opinion of Dr. Kelly Barbour, M.D when
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assessing plaintiff’s residual functional capacity (“RFC”). Because the RFC could have
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 included additional limitations, and because these additional limitations may have
2 affected the ultimate disability determination, the error is not harmless.
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Therefore, this matter is reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g) to the Acting Commissioner for further consideration.

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BACKGROUND

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Plaintiff, RICHARD VERT, was born in 1959 and was 45 years old on the alleged
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date of disability onset of January 1, 2005 (see AR. 173-81). Plaintiff obtained his GED
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(AR. 65). Most of plaintiff’s work experience is as an auto mechanic, but he has also
worked as a painter and has done some landscaping (AR. 65-66).
According to the ALJ, plaintiff has at least the severe impairments of

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12 “degenerative disc disease of the lumbar spine; cervical strain; adjustment disorder with
13 anxiety; and polysubstance abuse and dependence in remission (20 CFR 416.920(c))”
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PROCEDURAL HISTORY

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Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant
to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and
following reconsideration (see AR. 79-85, 87-97). Plaintiff’s requested hearing was held

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before Administrative Law Judge Glen G. Meyers (“the ALJ”) on August 8, 2013 (see
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AR. 39-77). On August 27, 2013, the ALJ issued a written decision in which the ALJ
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concluded that plaintiff was not disabled pursuant to the Social Security Act (see AR. 1938).

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

2 not the ALJ gave proper weight to the medical opinions in the record; (2) Whether or not
3 the ALJ gave specific, clear, and convincing reasons for finding plaintiff not fully
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credible; and (3) Whether or not the ALJ erred in finding that plaintiff’s COPD was not a
severe impairment (see Dkt. 11, p. 1). Because this Court reverses and remands the case

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based on issue 1, the Court need not further review other issues and expects the ALJ to
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reevaluate the record as a whole in light of the direction provided below.
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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s

11 denial of social security benefits if the ALJ’s findings are based on legal error or not
12 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
13 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
14 1999)).
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DISCUSSION
(1)

Whether or not the ALJ gave proper weight to the medical opinions in
the record.

Plaintiff contends that the ALJ erred by failing to address the most recent opinion

19 of treating physician Dr. Kelly Barbour, M.D. (see Opening Brief, Dkt. 11, p. 6). On
20 December 13, 2011, Dr. Barbour saw plaintiff for the purpose of providing an evaluation
21 for the Department of Social and Health Services (“DSHS”) (see AR. 273-77). At this
22 visit, Dr. Barbour performed a physical evaluation and provided an assessment of
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plaintiff’s capabilities (see id.). In her assessment, Dr. Barbour opined that due to

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ORDER ON PLAINTIFF’S COMPLAINT - 3

1 plaintiff’s lower back symptoms, plaintiff could not lift more than ten pounds, sit or stand
2 for more than one to two hours at a time, squat, twist, walk long distances, run, or climb
3 stairs (see AR. 276).
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“A treating physician’s medical opinion as to the nature and severity of an
individual’s impairment must be given controlling weight if that opinion is well-

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supported and not inconsistent with the other substantial evidence in the case record.”
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Edlund v. Massanari, 2001 Cal. Daily Op. Srvc. 6849, 2001 U.S. App. LEXIS 17960 at
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*14 (9th Cir. 2001) (citing Social Security Ruling (“SSR”) 96-2p, 1996 SSR LEXIS 9);
see also Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). When the decision is

11 unfavorable, it must “contain specific reasons for the weight given to the treating source’s
12 medical opinion, supported by the evidence in the case record, and must be sufficiently
13 specific to make clear to any subsequent reviewers the weight the adjudicator gave to the
14 [] opinion and the reasons for that weight.” SSR 96-2p, 1996 SSR LEXIS 9 at *11-*12.
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The ALJ must provide “clear and convincing” reasons for rejecting the

16 uncontradicted opinion of either a treating or examining physician or psychologist.
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Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d
418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). But when

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a treating or examining physician’s opinion is contradicted, that opinion can be rejected
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“for specific and legitimate reasons that are supported by substantial evidence in the
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record.” Lester, supra, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043
(9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can

24 accomplish this by “setting out a detailed and thorough summary of the facts and

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 conflicting clinical evidence, stating his interpretation thereof, and making findings.”
2 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881
3 F.2d 747, 751 (9th Cir. 1989)).
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In addition, the ALJ must explain why her own interpretations, rather than those of
the doctors, are correct. Reddick, supra, 157 F.3d at 725 (citing Embrey, supra, 849 F.2d

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at 421-22). But, the Commissioner “may not reject ‘significant probative evidence’
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without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting
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Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642
F.2d 700, 706-07 (3d Cir. 1981))). The “ALJ’s written decision must state reasons for

11 disregarding [such] evidence.” Flores, supra, 49 F.3d at 571.
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Here, the ALJ did not acknowledge Dr. Barbour’s opinion from December of 2011

13 and provided no reasons for disregarding the evidence. In the portion of the ALJ’s
14 decision in which he evaluated Dr. Barbour’s opinion, the ALJ characterized Dr.
15 Barbour’s evaluation from April of 2011 as her “most recent evaluation” and provided
16 reasons for discounting that assessment (see AR. 31) 1. While it is unclear whether or not
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Dr. Barbour did in fact complete the DSHS physical evaluation or functional assessment
forms after plaintiff’s visit in December of 2011, or why they are not in the record, the

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report from that visit clearly outlines Dr. Barbour’s opinion of plaintiff’s functional
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limitations (see AR. 276). These limitations are more restrictive than those expressed in
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Furthermore, defendant’s brief also characterizes Dr. Barbour’s evaluation from April
23 of 2011 as the most recent and offers no response to plaintiff’s claim that the ALJ erred by
failing to acknowledge Dr. Barbour’s opinion from December of 2011 (see Defendant’s Brief,
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ORDER ON PLAINTIFF’S COMPLAINT - 5

1 Dr. Barbour’s assessment from April of 2011 after plaintiff tried to go back to work and
2 was unable to perform the work (see AR. 272-77; compare with AR. 369-72). Nothing in
3 the records of plaintiff’s more recent visits to Dr. Barbour indicates that Dr. Barbour
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found plaintiff any less restricted after her assessment in December of 2011 (see,
generally, AR. 256-71). Accordingly, the ALJ erred by failing to address this significant

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probative evidence without explanation.
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The Ninth Circuit has “recognized that harmless error principles apply in the
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Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th

11 Cir. 2006) (collecting cases)). The Ninth Circuit noted that “in each case we look at the
12 record as a whole to determine [if] the error alters the outcome of the case.” Id. The court
13 also noted that the Ninth Circuit has “adhered to the general principle that an ALJ’s error
14 is harmless where it is ‘inconsequential to the ultimate nondisability determination.’” Id.
15 (quoting Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))
16 (other citations omitted).
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Here, the ALJ found that plaintiff was capable of light work, with the only
additional physical restriction being a limitation to frequent use of his bilateral hands (see

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AR. 26). Because the ALJ improperly failed to address Dr. Barbour’s most recent opinion
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containing further restrictions in forming that RFC, and plaintiff was found to be capable
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of performing work based on that RFC, the error affected the ultimate disability
determination and is not harmless.

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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The Court may remand this case “either for additional evidence and findings or to

2 award benefits.” Smolen, supra, 80 F.3d at 1292. Generally, when the Court reverses an
3 ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the
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agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587,
595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual case in which it is clear

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from the record that the claimant is unable to perform gainful employment in the national
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economy,” and that “remand for an immediate award of benefits is appropriate.” Id.
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Here, the outstanding issues are unresolved conflicts in the medical evidence and whether
or not a vocational expert may still find an ability to perform other jobs existing in

11 significant numbers in the national economy despite any additional limitations.
12 Accordingly, remand for further consideration is warranted in this matter.
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CONCLUSION

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Based on these reasons and the relevant record, the Court ORDERS that this

15 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
16 405(g) to the Acting Commissioner for further consideration consistent with this order.
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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 3rd day of September, 2015.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 7