Pletsch v. Colvin

Filing 15

ORDER re 1 Complaint filed by Theodore B. Pletsch by Judge J Richard Creatura. 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. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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THEODORE B. PLETSCH,

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Plaintiff,

CASE NO. 14-cv-05610 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. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkt. 12, 13, 14.).

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After considering and reviewing the record, the Court concludes that the ALJ
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failed to evaluate properly the medical evidence, as plaintiff’s activities of daily living do
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not demonstrate that he is capable of standing or walking for more than four hours in an
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 eight hour workday, and his MRI results of a disc bulge encroaching on multiple nerve
2 roots provide objective medical evidence in support of the doctor’s opined limitations.
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As this error is not harmless, this matter is 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.

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BACKGROUND
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Plaintiff, THEODORE B. PLETSCH, was born in 1959 and was 48 years old on
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the amended alleged date of disability onset of January 1, 2008 (see AR. 76, 236-37).
Plaintiff has at least a high school education (see AR. 31). Plaintiff has work experience

11 as a carpenter, a commercial tree planter and in construction (AR. 75, 284-300).

According to the ALJ, plaintiff has at least the severe impairments of “lumbar

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13 degenerative disc disease, spondylolisthesis at L4-5, emphysema, [and] loss of sensation
14 in saddle distribution, (20 CFR 404.1520(c))” (AR. 24).
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At the time of the hearing, plaintiff was living with his wife (see AR. 301).

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PROCEDURAL HISTORY

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Plaintiff provides the following uncontested procedural history:

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Plaintiff, Theodore B. Pletsch (“Pletsch”) protectively filed an application
for Social Security disability benefits on January 21, 2009, alleging that
he has been disabled since May 31, 2007. 1 His application was denied
initially and on reconsideration, and a hearing was held before
Administrative Law Judge Steve Lynch (“the ALJ”) on January 21, 2011.
(Tr. 69-92). . . . [And, following remand from the Appeals Council,] a
new hearing was held on December 6, 2012. (Tr. 38-68). On January 10,

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(AR. 236-39). At his first hearing, plaintiff amended his alleged disability onset date to
24 January 1, 2008 (AR. 76).

ORDER ON PLAINTIFF’S COMPLAINT - 2

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2013, the ALJ issued a decision in which he again found that [plaintiff]
was not disabled. (Tr. 18-37). On April 14, 2014, the Appeals Council
denied [plaintiff]’s request for review, leaving the decision of the ALJ as
the final decision of the Commissioner. (Tr. 3-6). A timely Complaint
was filed in Federal District Court.

4 (See Plaintiff’s Opening Brief, Dkt. 12, p. 2.)
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ

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properly evaluated plaintiff’s testimony; (3) Whether or not the ALJ properly evaluated
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the lay evidence; (4) Whether or not the ALJ properly assessed plaintiff’s residual
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functional capacity; and (5) Whether or not the ALJ erred at step five (see Dkt. 12, p. 1).
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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

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

Whether or not the ALJ properly evaluated the medical evidence.

Plaintiff contends that the ALJ failed to evaluate properly the opinions of

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examining doctor, Dr. Peter Pfeiffer, M.D. Defendant contends that the ALJ’s rationale
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was appropriate and there is no error.
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When an opinion from an examining doctor is contradicted by other medical
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opinions, the examining doctor’s opinion can be rejected “for specific and legitimate

ORDER ON PLAINTIFF’S COMPLAINT - 3

1 reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81
2 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.
3 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). In addition, the ALJ must
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explain why his own interpretations, rather than those of the doctor, are correct. Reddick
v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Embrey v. Bowen, 849 F.2d 418,

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421-22 (9th Cir. 1988)).
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Dr. Pfeiffer examined plaintiff and reviewed plaintiff’s lumbar spine MRI, as well
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as his physical therapy records (see AR. 508-19). Dr. Pfeiffer noted plaintiff’s reported
activities of daily living, including doing some yard work, such as mowing the lawn, or

11 doing some housework, such as cooking, cleaning or vacuuming, and watching TV (see
12 AR. 509). Dr. Pfeiffer noted that plaintiff had a normal gait and station (see AR. 510).
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Despite finding that plaintiff had normal range of motion in all other joints in his

14 body, Dr. Pfeiffer noted that plaintiff’s range of motion in his back was 80 degrees of
15 flexion and 5 degrees of extension (see id.; see also AR. 518-19). Noting that “the
16 radiological evidence point[s] to a misalignment of vertebral bodies at L4-L5, [Dr.
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Pfeiffer] [opined] that [plaintiff’s] back pain will either remain the same or continue to
get worse” (see AR. 511). Dr. Pfeiffer opined specifically that plaintiff could “stand or

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walk for four hours in an eight hour day due to his back pain” (see id.; see also AR. 513).
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He also limited plaintiff to lifting twenty pounds regularly due to back pain, but indicated
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that there were no manipulative limitations (see AR. 511, 512, 514).
The ALJ gave only “some weight” to the opinion of Dr. Pfeiffer (see AR. 29). In

24 doing so, the ALJ relied in part on a finding that the objective medical evidence suggests

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 that plaintiff’s “ability to stand and walk is not as limited as Dr. Pfeiffer opined” (see id.).
2 However, as noted previously by the ALJ in his written decision, plaintiff’s February
3 2010 MRI of the lumbar spine revealed “degenerative changes in the lumbar spine with
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posterior annular tears and small disc protrusions at multiple levels, facet hypertrophic
changes in the lower lumbar spine, L3-L4 disc material abutting the left L4 nerve root in

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the lateral recess . . . .” and his “December 2011 lumbar MRI revealed mild multilevel
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degenerative disc disease, no central spinal canal stenosis, mild anterior left L2-3 neural
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foraminal narrowing secondary to left paracentral disc bulge, encroachment upon the
descending left L3 nerve root and descending bilateral L4 nerve roots secondary to disc

11 bulge” (AR. 28 (citations omitted)). These objective medical findings provide ample
12 support for Dr. Pfeiffer’s opinion regarding plaintiff’s limitations on standing and
13 walking. With respect to the limitations on standing and walking, the ALJ has not
14 explained why his own interpretations, rather than those of the doctor, are correct. See
15 Reddick, supra, 157 F.3d at 725 (citing Embrey, surpa, 849 F.2d at 421-22).
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When rejecting the opinions of Dr. Pfeiffer, the ALJ also relied in part on a
finding that plaintiff’s “activities of daily living suggest that his ability to stand and walk
is not as limited as Dr. Pfeiffer opined” (see AR. 29). The ALJ does not specify which

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activities of daily living he finds inconsistent with the opinion of Dr. Pfeiffer, however
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elsewhere in his written decision, when failing to credit fully plaintiff’s credibility, the
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ALJ relies on plaintiff’s “activities of daily living that include performing housework,
yard work, and playing solitaire for several hours a day” (see AR. 31(citations omitted)).

24 First, the Court notes that other than playing solitaire, which does not generally require

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 standing or walking, these activities of daily living noted by the ALJ are the same
2 activities of daily living noted by Dr. Pfeiffer (see id.; see also AR. 509). Again, the ALJ
3 has not explained why his own interpretations, rather than those of the doctor, are correct.
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See Reddick, supra, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th
Cir. 1988)). Secondly, plaintiff indicated that he did “clean (minor) up house [and]

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limited yard work” (see AR. 309). Plaintiff specified that he does laundry, some
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sweeping and light yard work for “2 hours” and that he cooks “easy, single course food”
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for an hour at a time (see AR. 311). These activities do not require standing or walking
more than four hours in an eight-hour work day. Therefore, the Court concludes that the

11 ALJ’s finding that plaintiff’s “activities of daily living suggest that his ability to stand
12 and walk is not as limited as Dr. Pfeiffer opined” is not supported by substantial evidence
13 in the record as a whole (see AR. 29).
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The ALJ also supports his rejection of Dr. Pfeiffer’s opinion because “the

15 objective medical evidence does not indicate that the claimant has any manipulative
16 limitations” (see id.). However, as Dr. Pfeiffer opined no manipulative limitations, this
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finding does not provide any support for the ALJ’s rejection of Dr. Pfeiffer’s opinions
(see AR. 511).

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For the reasons stated and based on the relevant record as a whole, the Court
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concludes that the ALJ erred in failing to credit fully the opinions of examining doctor,
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Dr. Pfeiffer.
The Court also concludes that this error is not harmless. The Ninth Circuit has

24 “recognized that harmless error principles apply in the Social Security Act context.”

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Commissioner,
2 Social Security Administration, 454 F.3d 1050, 1054 (9th Cir. 2006) (collecting cases)).
3 The Ninth Circuit noted that “in each case we look at the record as a whole to determine
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[if] the error alters the outcome of the case.” Id. The court also noted that the Ninth
Circuit has “adhered to the general principle that an ALJ’s error is harmless where it is

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‘inconsequential to the ultimate nondisability determination.’” Id. (quoting Carmickle v.
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Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)) (other citations omitted).
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Courts must review cases “‘without regard to errors’ that do not affect the parties’
‘substantial rights.’” Id. at 1118 (quoting Shinsheki v. Sanders, 556 U.S. 396, 407 (2009)

11 (quoting 28 U.S.C. § 2111) (codification of the harmless error rule)).
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The ALJ failed to include the limitations opined by Dr. Pfeiffer into plaintiff’s

13 residual functional capacity (“RFC”) and into the hypothetical questions presented to the
14 vocational expert (see AR. 27). Had the limitations been included, the ultimate
15 determination of non-disability based on these findings may have been different. Thus,
16 the error is not harmless. See id. However, as noted by defendant, there “is no vocational
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testimony indicating whether [these] limitations [opined by Dr. Pfeiffer], if adopted,
would be disabling” (see Response, Dkt. 13, pp. 20-21). Therefore, contrary to plaintiff’s

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request, the Court does not remand with a direction to award benefits. See Garrison v.
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Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citations omitted) (the final step in the credit21
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as-true analysis is to determine whether or not “if the improperly discredited evidence
[was] credited as true, the ALJ would be required to find the claimant disabled on

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ORDER ON PLAINTIFF’S COMPLAINT - 7

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(2)

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

Whether or not the ALJ properly evaluated plaintiff’s testimony.

3 evidence and that this matter should be reversed and remanded for further consideration,
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see supra, section 1. In addition, a determination of a claimant’s credibility relies in part
on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c). Therefore,

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plaintiff’s credibility should be assessed anew following remand of this matter.
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Based on the record as a whole, the Court concludes that all of the medical
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evidence, as well as the lay evidence offered by plaintiff’s wife, Ms. Judy Mary Pletsch,
should be evaluated anew following remand of this matter. As a necessity, the RFC and

11 the step five findings also must be evaluated anew following remand.

CONCLUSION

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

14 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
15 405(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.

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Dated this 30th day of January, 2015.

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A

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J. Richard Creatura
United States Magistrate Judge

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