Eddy v. Colvin

Filing 12

ORDER re 1 Complaint, filed by Gail Louise Eddy - 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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GAIL LOUISE EDDY,
Plaintiff,

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CASE NO. 14-cv-05766 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

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

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States

19 Magistrate Judge, Dkt. 5). This matter has been fully briefed (see Dkt. 10, 11).
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After considering and reviewing the record, the Court concludes that the ALJ

21 erred in giving little weight to a portion of the opinion of examining psychologist, Dr.
22 William Wilkinson, Ed.D., because the ALJ provided only a conclusory statement to
23 reject the opinion. Had the ALJ credited fully the opinion of Dr. Wilkinson, the residual
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 functional capacity would have included additional limitations and thus the error is not
2 harmless.
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Therefore, this matter must be 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, GAIL LOUISE EDDY, was born in 1963 and was 45 years old on the
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alleged date of disability onset of August 8, 2009 (see AR. 184-87, 188-97). Plaintiff
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graduated from high school, attended some college and completed a certified nursing
assistant (“CNA”) course (AR. 56, 218). Plaintiff has worked as a caregiver, waitress and

11 sales clerk (AR. 36, 68, 218). Plaintiff last worked as a caregiver, but stopped working
12 when she got sick with chronic obstructive pulmonary disease (“COPD”) (AR. 57).
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According to the ALJ, plaintiff has the severe impairments of “degenerative disc

14 disease of the lumbar spine, with moderate to severe narrowing of the neural foramina at
15 L5-S1 and lumbar neuromas; fibromyalgia; obesity; asthma; affective disorder; anxiety
16 disorder; post-traumatic stress disorder (20 CFR 404.1520(c) and 416.920(c))” (AR. 21).
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At the time of the hearing, plaintiff was living with friends and family (AR. 55).
PROCEDURAL HISTORY

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Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42
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U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
following reconsideration (see AR. 77-83, 84-90, 91-105, 106-115). Plaintiff’s requested

24 hearing was held before Administrative Law Judge Cynthia D. Rosa (“the ALJ”) on

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 January 18, 2013 (see AR. 46-74). On February 22, 2013, the ALJ issued a written
2 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social
3 Security Act (see AR. 16-42).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the granting of little or no weight to the mental function assessments of examining

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psychologists Drs. Wilkinson and Langhofer is based on legally sufficient rationales; (2)
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Whether or not the premature opinion of a non-examining review psychologist amounts
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to substantial evidence sufficient to support the ALJ’s residual mental functional capacity
determination; and (3) Whether or not the finding that plaintiff’s subjective complaints

11 are not credible is supported by clear and convincing evidence (see Dkt. 10, 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

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

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DISCUSSION

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(1)
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Whether or not the ALJ erred by giving little to no weight to the
opinions of examining psychologists Drs. Wilkinson and Langhofer and
great weight to the opinion of non-examining psychologist Dr.
Robinson.

Plaintiff contends that the ALJ erred when she rejected portions of the opinions of
examining psychologists Dr. William Wilkinson, Ed.D. and Dr. Rachelle Langhofer,

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ORDER ON PLAINTIFF’S COMPLAINT - 3

1 Ph.D. (see Dkt. 10, pp. 5-12). Plaintiff also argues that the ALJ erred by giving great
2 weight to the opinion of non-examining psychologist Dr. John Robinson, Ph.D. (see id. at
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The ALJ must provide “clear and convincing” reasons for rejecting the
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
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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
“for specific and legitimate reasons that are supported by substantial evidence in the

11 record.” Lester, supra, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043
12 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can
13 accomplish this by “setting out a detailed and thorough summary of the facts and
14 conflicting clinical evidence, stating his interpretation thereof, and making findings.”
15 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881
16 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 v. Bowen, 849

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F.2d 418, 421-22 (9th Cir. 1988)). But, the Commissioner “may not reject ‘significant
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probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th
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Cir. 1995) (quoting 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

24 must state reasons for disregarding [such] evidence.” Flores, supra, 49 F.3d at 571.

ORDER ON PLAINTIFF’S COMPLAINT - 4

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An examining physician’s opinion is “entitled to greater weight than the opinion

2 of a nonexamining physician.” Lester, supra, 81 F.3d at 830 (citations omitted); see also
3 20 C.F.R. § 404.1527(c)(1)(“Generally, we give more weight to the opinion of a source
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who has examined you than to the opinion of a source who has not examined you”). A
non-examining physician’s or psychologist’s opinion may not constitute substantial

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evidence by itself sufficient to justify the rejection of an opinion by an examining
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physician or psychologist. Lester, supra, 81 F.3d at 831 (citations omitted). However, “it
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may constitute substantial evidence when it is consistent with other independent evidence
in the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing

11 Magallanes, supra, 881 F.2d at 752).
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“In order to discount the opinion of an examining physician in favor of the opinion

13 of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons
14 that are supported by substantial evidence in the record.” Van Nguyen v. Chater, 100 F.3d
15 1462, 1466 (9th Cir. 1996) (citing Lester, supra, 81 F.3d at 831).
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a. Dr. Wilkinson
Dr. Wilkinson submitted a psychological/psychiatric evaluation in December of

19 2010 (see AR. 552-56). Dr. Wilkinson opined that plaintiff has mild limitations in her
20 ability to understand, remember and persist in tasks following simple instructions (AR.
21 554). Plaintiff has moderate limitations in her ability to learn new tasks, perform routine
22 tasks without undue supervision, be aware of normal hazards and take appropriate
23 precautions, and understand, remember and persist in tasks by following complex
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ORDER ON PLAINTIFF’S COMPLAINT - 5

1 instructions of three or more steps (AR. 554-55). Plaintiff also has marked limitations in
2 her ability to communicate and perform effectively in a work setting with limited public
3 contact and maintain appropriate behavior in a work setting (AR. 555).
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The ALJ found, in relevant part, that Dr. Wilkinson

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assessed a moderate limitation in the claimant’s ability to
learn new tasks, to perform routine tasks without undue
supervision, and to be aware of normal hazards and take
appropriate precautions, citing the claimant’s “terse,
unelaborated and literal” interpretation of abstractions and
distracted/focused on the ongoing tasks of “pulling her life
together and to get her children back.” The doctor also
explained that the claimant was “hyper focused to the point of
being overly cautious, tentative, obsessive, but quite intent on
improving herself as well as proving herself.” Ex 7F/10. The
undersigned agrees that the claimant was likely preoccupied
with life stressors at the time of this evaluation, which took
place while she was still incarcerated, awaiting trial, or
recently released, but finds that her performance on [the]
mental status examination did not reflect her longitudinal
history for the period at issue.

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(AR. 35).
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Dr. Wilkinson based his findings regarding plaintiff’s moderate limitations on
plaintiff’s depression, anxiety, hyper-focused behavior, and her focus on “on-going

18 tasks” (AR. 554-55). Dr. Wilkinson also supported his opinion with findings from the
19 mental status examination, including findings that plaintiff’s interpretation of
20 “abstractions tended to the terse, unelaborated and literal” (AR. 555). Further, Dr.
21 Wilkinson assessed that plaintiff struggled with life stressors – no work since 2008 or
22 2009, trauma to plaintiff’s daughters, court involvement including an upcoming hearing
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regarding custody of her children, recent incarceration, separation from her children with

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ORDER ON PLAINTIFF’S COMPLAINT - 6

1 imminent possible loss of parental rights, grief, loss issues, and plaintiff’s physical and
2 mental health problems – for an extended period of time (see AR. 552, 554).
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The ALJ agreed with Dr. Wilkinson regarding plaintiff’s limitations due to her
stressors at the time of the evaluation, yet rejects Dr. Wilkinson’s opinion because
plaintiff’s performance on the mental status examination did not reflect her longitudinal

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history (AR. 35). The ALJ, however, failed to specify anything from plaintiff’s
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“longitudinal history” that contradicted plaintiff’s performance on the mental status
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examination or Dr. Wilkinson’s assessment of her performance. Further, the ALJ does
not reference Dr. Wilkinson’s additional findings, such as plaintiff’s limitations due to

11 anxiety, depression, and stressors present prior to the examination period. The ALJ’s
12 conclusory statement that plaintiff’s performance on the mental status examination does
13 not reflect her longitudinal history, without more, is insufficient to constitute specific and
14 legitimate reasons, supported by substantial evidence in the record to reject Dr.
15 Wilkinson’s opinion. See Embry v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)
16 (conclusory reasons do “not achieve the level of specificity” required to justify an ALJ’s
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rejection of an opinion); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an
ALJ’s rejection of a physician’s opinion on the ground that it was contrary to clinical

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findings in the record was “broad and vague, failing to specify why the ALJ felt the
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treating physician’s opinion was flawed”). Thus, the ALJ erred in her assessment of this
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portion of Dr. Wilkinson’s opinion.
The Ninth Circuit has “recognized that harmless error principles apply in the

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

ORDER ON PLAINTIFF’S COMPLAINT - 7

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

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(quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))
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(other citations omitted). The court noted the necessity to follow the rule that courts must
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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) (quoting 28

11 U.S.C. § 2111) (codification of the harmless error rule)).
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Furthermore, “the fact that the administrative law judge, had she considered the

13 entire record, might have reached the same result does not prove that her failure to
14 consider the evidence was harmless. Had she considered it carefully, she might well have
15 reached a different conclusion.” Hollingsworth v. Colvin, 2013 WL 3328609 *4 (W.D.
16 Wash. July 1, 2013) (quoting Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). If the
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ALJ had credited fully Dr. Wilkinson’s opinion regarding plaintiff’s ability to learn new
tasks, perform routine tasks without undue supervision, and be aware of normal hazards

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and take appropriate precaution, the residual functional capacity (“RFC”) would have
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included additional limitations in these areas, as would have the hypothetical to the
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vocational expert. As the ALJ’s ultimate determination regarding disability was based on
the testimony of the vocational expert on the basis of an improper hypothetical question,

24 these errors affected the ultimate disability determination and are not harmless.

ORDER ON PLAINTIFF’S COMPLAINT - 8

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Although plaintiff argues in a conclusory manner that this matter should be

2 remanded with a direction to award benefits (see Opening Brief, Dkt. 10, p. 17), the
3 Court concludes that such would be inappropriate because it is unclear that the ALJ
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would be required to find plaintiff disabled if the improperly discredited evidence was
credited as true. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citing Ryan

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v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008).
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b. Dr. Langhofer & Dr. Robinson
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Plaintiff argues that the ALJ also erred by providing legally insufficient reasons
for rejecting portions of Dr. Langhofer’s opinion, and erred by giving great weight to the

11 opinion of Dr. Robinson (see Plaintiff’s Opening Brief, Dkt. 10, pp. 10-13). As the Court
12 already has determined that this matter must be reversed and remanded for further
13 consideration, see supra, section 1.a, the ALJ is instructed to re-evaluate the opinions of
14 Drs. Langhofer and Robinson on remand.
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The Court notes briefly, however, that the ALJ erred in rejecting Dr. Langhofer’s

16 opinion that plaintiff is limited to part-time work. Dr. Langhofer opined that plaintiff
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might be able to work in part-time settings with additional limitations because plaintiff’s
mental health conditions would impair her interactions, concentration, behavior, and pace

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in most work settings (AR. 541). The ALJ gave little weight to this portion of Dr.
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Langhofer’s opinion, yet incorporated the additional limitations into the residual
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functional capacity assessment (see AR. 24, 35). The ALJ found that Dr. Langhofer did
not explain why plaintiff could not work a full-time job and found that the opinion was

24 not supported by the clinical examination or recorded observations (AR. 35).

ORDER ON PLAINTIFF’S COMPLAINT - 9

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The ALJ, however, failed to specify anything from Dr. Langhofer’s records that

2 contradicted her findings regarding plaintiff’s ability to perform only part-time work (see
3 AR. 35). Further, the ALJ does not explain why Dr. Langhofer’s findings that plaintiff’s
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symptoms will impair her interactions, concentration, behavior and pace are not sufficient
to support the opinion that plaintiff is unable to work full-time, yet are sufficient to

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support Dr. Langhofer’s other opinions. The ALJ must explain why her own
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interpretation of the record, rather than those of Dr. Langhofer, are correct. See Reddick,
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supra, 157 F.3d at 72; see Embry, 849 F.2d at 421-22. This error, too, should be corrected
by the ALJ following remand of this matter.
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Whether or not the finding that plaintiff’s subjective complaints are
not credible is supported by clear and convincing evidence.

Plaintiff also argues that the ALJ improperly discredited plaintiff’s subjective

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complaints (see Plaintiff’s Opening Brief, Dkt. 10, pp. 13-16). The Court already has
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concluded that the ALJ erred in reviewing the medical evidence and that this matter
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should be reversed and remanded for further consideration, see supra, section 1.a. In
addition, a determination of a claimant’s credibility relies in part on the assessment of the

18 medical evidence. See 20 C.F.R. § 404.1529(c). Therefore, plaintiff’s credibility should
19 be assessed anew following remand of this matter.
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CONCLUSION

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

22 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
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405(g) to the Acting Commissioner for further consideration consistent with this order.

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ORDER ON PLAINTIFF’S COMPLAINT - 10

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

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Dated this 13th day of March, 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 - 11