Johnson v. Colvin

Filing 18

ORDER ON PLAINTIFF'S COMPLAINT by Judge J Richard Creatura. This matter is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration. (SH)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

7
8
9

CLARENCE BRUCE JOHNSON,
Plaintiff,

10
11
12
13

CASE NO. 13-cv-05742 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

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

14

Defendant.

15
16

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

17 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
18 Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United
19 States Magistrate Judge, ECF No. 6). This matter has been fully briefed (see ECF Nos.
20 12, 16, 17).
21
22
23

After considering and reviewing the record, the Court finds that the ALJ erred
when reviewing the medical evidence from examining doctor, Dr. Heilbrunn. Although
the ALJ found that Dr. Heilbrunn relied on plaintiff’s subjective statements, the record

24

ORDER ON PLAINTIFF’S COMPLAINT - 1

1 demonstrates otherwise. Similarly, although the ALJ found that plaintiff’s activities
2 demonstrated that he could function greater than he alleged, none of the activities noted
3
4
5

by the ALJ are inconsistent with Dr. Heilbrunn’s opinion.
Therefore, the ALJ failed to provide specific and legitimate reasons supported by
substantial evidence in the record for discounting Dr. Heilbrunn’s opinion; this matter

6

must be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the
7

Acting Commissioner for further consideration.
8

BACKGROUND

9
10
11

Plaintiff, CLARENCE BRUCE JOHNSON, was born in 1959 and was 50 years
old on the alleged date of disability onset of January 10, 2010 (see Tr. 191-92). Plaintiff

12 attended school to the seventh grade and obtained his GED while in prison (Tr. 48).
13 Plaintiff owned and operated a recycling business until he became unable to work (Tr.
14 48-51, 203).
15
16
17
18

According to the ALJ, plaintiff has at least the severe impairments of
“degenerative disc disease and restless leg syndrome (20 CFR 404.1520(c))” (Tr. 22).
At the time of the hearing, plaintiff was living in a rental house (Tr. 56).
PROCEDURAL HISTORY

19

Plaintiff’s application for disability insurance (“DIB”) benefits pursuant to 42
20

U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following
21
22
23

reconsideration (see Tr. 96-105, 109-115, 191-92). Plaintiff’s requested hearing was held
before Administrative Law Judge Kimberly Boyce (“the ALJ”) on February 27, 2012

24 (see Tr. 34-85). On March 22, 2012, the ALJ issued a written decision in which she

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 concluded that plaintiff was not disabled pursuant to the Social Security Act (see Tr.172 33).
3
4
5

In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ erred in evaluating the medical opinion source evidence in the record; (2)
Whether or not the ALJ erred in assessing the plaintiff’s credibility and pain testimony;

6

(3) Whether or not the ALJ erred when evaluating plaintiff’s past relevant work; and (4)
7

Whether or not the ALJ erred by failing to consider the effects of plaintiff’s medication
8
9

on his ability to work (see ECF No. 12, pp. 1-2).
STANDARD OF REVIEW

10
11

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

12 denial of social security benefits if the ALJ's findings are based on legal error or not
13 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
14 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
15 1999)).
16
17
18
19

DISCUSSION
(1)

Whether or not the ALJ erred in evaluating the medical opinion source
evidence in the record.

Plaintiff contends that the ALJ erred by rejecting the opinions of Dr. Mark

20 Heilbrunn, M.D., who examined plaintiff on March 8, 2011 (see Tr. 245-51). Although
21 plaintiff contends that Dr. Heilbrunn’s opinion is uncontradicted, his opinion is
22 contradicted by the opinion of the state agency medical consultant, nonexamining
23 physician, Dr. Norman Staley, M.D. (see Tr. 101-03).
24

ORDER ON PLAINTIFF’S COMPLAINT - 3

1

The ALJ must provide “clear and convincing” reasons for rejecting the

2 uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81
3
4
5

F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988). But when an examining physician’s opinion is contradicted, that opinion can be
rejected “for specific and legitimate reasons that are supported by substantial evidence in

6

the record.” Id. at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995);
7

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
8
9
10

Although defendant contends that the ALJ rejected Dr. Heilbrunn’s opinion
because it was inconsistent with plaintiff’s subjective statements to Dr. Heilbrunn, the

11 ALJ made no such finding. According to the Ninth Circuit, “[l]ong-standing principles of
12 administrative law require us to review the ALJ’s decision based on the reasoning and
13 actual findings offered by the ALJ - - not post hoc rationalizations that attempt to intuit
14 what the adjudicator may have been thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219,
15 1225-26 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other
16
17
18

citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“we
may not uphold an agency’s decision on a ground not actually relied on by the agency”)
(citing Chenery Corp, supra, 332 U.S. at 196).

19

While an ALJ can reject an opinion if it based entirely on plaintiff’s subjective
20

reports, Dr. Heilbrunn did not rely entirely on plaintiff’s subjective reports. Plaintiff
21
22
23

reported to Dr. Heilbrunn that he was not limited in sitting other than positional changes
(see Tr. 246). Nevertheless, Dr. Heilbrunn concluded that plaintiff only could sit for a

24 total of five hours in an eight hour workday. The ALJ incorrectly stated that he

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 discounted Dr. Heilbrunn’s opinion in part by finding that the “unremarkable objective
2 findings noted on examination” demonstrated that Dr. Heilbrunn relied to some extent on
3
4
5

plaintiff’s subjective description of his symptoms and limitations (see Tr. 28). However,
it is clear from a review of the record that Dr. Heilbrunn did not rely on plaintiff’s
subjective statements for his opinion limiting plaintiff to sitting for a total of five hours in

6

an eight hour workday, as plaintiff reported to Dr. Heilbrunn that he was not limited in
7

sitting other than positional changes (see Tr. 246). Had Dr. Heilbrunn relied on plaintiff’s
8
9
10

subjective statements as opposed to his own observation and review of objective
evidence, Dr. Heilbrunn would have opined that plaintiff had no limitations on sitting

11 other than the need to change position. Therefore, to the extent that the ALJ found that
12 Dr. Heilbrunn relied on plaintiff’s subjective reports for his opinion that plaintiff only
13 could sit for a total of five hours in an eight hour workday, this finding is not based on
14 substantial evidence in the record as a whole.
15
16
17
18
19
20
21

In addition, the Court concludes that the ALJ appears to have provided her own
interpretation of Dr. Heilbrunn’s examination results by characterizing them as
“unremarkable” (see Tr. 28). However, as noted by plaintiff:
Dr. Heilbrunn noted midline and paraspinous tenderness of the spine and
postural range of motion limitation of the lumbar spine (internal citation
to Tr. 520). The range of motion of the lumbar spine was significantly
limited. Dr. Heilbrunn noted that the claimant’s flexion was 15 degrees.
Normal flexion of the lumbar spine is 90 degrees. (Internal citation to
Scivally v. Sullivan, 966 F.2d 1070, 1073 fn.1 (7th Cir. 1992)).

22 (Opening Brief, ECF No. 12, p. 5).
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 5

1

Plaintiff’s characterization of the record is accurate, as Dr. Heilbrunn noted

2 tenderness on examination, as well as spinal flexion of 15 degrees (see Tr. 248-49). The
3
4
5

Court concludes that the ALJ’s provision of her own interpretation of Dr. Heilbrunn’s
examination results as “unremarkable” does not provide support for her determination to
not credit fully Dr. Heilbrunn’s opinion that plaintiff could sit for only five hours in an

6

eight hour work day. An ALJ must explain why her own interpretations, rather than those
7

of the doctors, are correct. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing
8
9
10

Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
The only other reason provided by the ALJ for her failure to credit fully Dr.

11 Heilbrunn’s opinions was that plaintiff’s activities “support greater functioning than
12 alleged, particularly with regard to the claimant’s ability to perform sitting” (see Tr. 28).
13 This appears to be a justification for failing to credit Dr. Heilbrunn’s opinion because of
14 the ALJ’s previous finding that his opinion was based on plaintiff’s subjective reports.
15 However, as discussed, such a finding by the ALJ is not supported by substantial
16
17
18

evidence in the record.
In addition, the ALJ’s reference to plaintiff’s activities does not encompass a
legitimate reason for her failure to credit fully Dr. Heilbrunn’s opinion, as none of the

19

activities mentioned by the ALJ demonstrate that plaintiff is capable of sitting for more
20

than five hours within the context of an eight hour workday. Even if plaintiff’s credibility
21
22
23

was not credited fully, the ALJ nevertheless must provide specific and legitimate reasons
for rejecting an examining doctor’s opinion, especially in the situation such as this one, in

24 which the doctor provides independent observations in support of his opinion.

ORDER ON PLAINTIFF’S COMPLAINT - 6

1

For the reasons stated and based on the relevant record, the Court concludes that

2 the ALJ did not provide specific and legitimate reasons based on substantial evidence in
3
4
5

the record as a whole for her failure to credit fully Dr. Heilbrunn’s opinion. The Court
also concludes that this error is not harmless error.
The Ninth Circuit has “recognized that harmless error principles apply in the

6

Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
7

(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
8
9
10

Cir. 2006) (collecting cases)). Here, the ALJ failed to credit Dr. Heilbrunn’s opinion that
plaintiff could sit for only five hours in an eight hour work day, and instead found that

11 plaintiff could sit for six hours in an eight hour work day in her residual functional
12 capacity [RFC] analysis (see Tr. 24). The ALJ’s step four and step five findings were
13 based on this RFC, and as the steps four and five findings may be different when based
14 on an RFC that includes a sitting limitation to less than six hours in an eight hour
15 workday, this matter must be evaluated anew.
16
17
18

(2)

Whether or not the ALJ erred in assessing the plaintiff’s credibility
and pain testimony.

The Court already has concluded that the ALJ erred in reviewing the medical

19 evidence and that this matter should be reversed and remanded for further consideration,
20 see supra, section 1. In addition, a determination of a claimant’s credibility relies in part
21 on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c). Therefore, for
22 this reason, plaintiff’s credibility should be assessed anew following remand of this
23 matter, as should any allegations of side effects from medication.
24

ORDER ON PLAINTIFF’S COMPLAINT - 7

1
2
3
4
5

(3)

Whether or not the ALJ erred by treating the plaintiff’s past relevant
“composite job” work as a recycling yard operator as two separate
jobs and then finding him capable of performing the least demanding
job.

Similarly, as this matter must be reversed and remanded for further consideration
of the medical evidence, see supra, section 1, steps four and five of the sequential

6 disability evaluation process must be completed anew, as necessary, and the remaining
7 contentions of plaintiff will not be discussed.
8

CONCLUSION

9

The ALJ erred when reviewing the medical evidence provided by examining

10 doctor, Dr. Heilbrunn.
11
12
13

Based on this reason and the relevant record, 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.

14

JUDGMENT should be for plaintiff and the case should be closed.
15

Dated this 7th day of July, 2014.
16
17

A

18

J. Richard Creatura
United States Magistrate Judge

19
20
21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 8