Webb v. Colvin

Filing 24

ORDER re 1 Complaint, filed by Lori Marie Webb 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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LORI MARIE WEBB,

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Plaintiff,

CASE NO. 3:15-cv-05098 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. 16, 20, 23).

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After considering and reviewing the record, the Court concludes that the ALJ
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erroneously dismissed the opinion of evaluating psychologist Kimberly Wheeler, Ph.D.
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The case must be reversed and remanded for further proceedings.
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ORDER ON PLAINTIFF’S COMPLAINT - 1

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BACKGROUND
Plaintiff, LORI MARIE WEBB, was born in 1962 and was 43 years old on the

3 alleged date of disability onset of January 1, 2006 (see AR. 188-94). Plaintiff graduated
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from high school and attended one year of college (AR. 802). Plaintiff has past work
experience as a bartender, and residential and commercial painter (AR. 64-66). Plaintiff’s

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last employment was a part-time job handing out samples at a warehouse store, but
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stopped working when she fractured her hip (AR. 49).
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According to the ALJ, plaintiff has at least the severe impairments of “Morbid
Obesity; Degenerative Joint Disease of the Bilateral Hips, status post Left Total Hip

11 Replacement; Asthma/COPD; Back Problems, Alcoholism; Depression; Anxiety; PTSD;
12 and Borderline Personality Disorder (20 CFR 416.920(c))” (AR. 21).
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At the time of the hearing, plaintiff lived in a recreational vehicle on her father’s

14 property (AR. 277, 285).
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PROCEDURAL HISTORY
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. 82-93, 95-109). Plaintiff’s requested hearing was held

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before Administrative Law Judge John Rohlf (“the ALJ”) on July 9, 2013 (see AR. 4320

80). On August 8, 2013, the ALJ issued a written decision in which the ALJ concluded
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that plaintiff was not disabled pursuant to the Social Security Act (see AR. 16-38).
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

24 not the ALJ provided sufficient reasons to reject the opinion of treating physician Robert

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 Peterson, M.D., that plaintiff was limited to sedentary work; (2) Whether or not the ALJ
2 provided sufficient reasons to reject the opinion of Dr. Wheeler; and (3) Whether or not
3 given these errors the residual functional capacity (“RFC”) and hypothetical questions
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were complete such that the step five finding had support in substantial evidence (see
Dkt. 16, 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
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denial of social security benefits if the ALJ's findings are based on legal error or not
supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

11 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
12 1999)).

DISCUSSION

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(1) Whether or not the ALJ provided sufficient reasons to reject the opinion of
treating physician Robert Peterson, M.D., that plaintiff was limited to
sedentary work.

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Dr. Robert Peterson treated plaintiff for her physical impairments. He completed a

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physical functional evaluation form in September 2012 (AR. 808-10). He listed
plaintiff’s chief complaints as moderate bilateral hip pain, moderate chronic back pain,

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severe depression, and severe asthma (AR. 808-09). He considered her mental health to
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be a major disabling problem (AR. 810). He rated plaintiff as capable of performing
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sedentary work with limitations persisting for three months (AR. 810).
Despite Dr. Peterson’s role as a treating physician, the ALJ gave his opinion only

24 “some” weight (AR. 29). The ALJ reached this conclusion because Dr. Peterson’s

ORDER ON PLAINTIFF’S COMPLAINT - 3

1 contemporaneous medical notes show normal range of motion in her neck, hips, back,
2 hands, and fingers, and no audible wheezing (AR. 29). Additionally, the ALJ noted that
3 Dr. Peterson opined that plaintiff’s limitations would only persist for three months and
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that it was unclear whether the doctor’s definition of disability was the same as that used
by the Social Security Administration (AR. 29). The ALJ also found that Dr. Peterson

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did not give “an in depth explanation for his opinion.” (AR. 29).
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Plaintiff contends the ALJ erred by rejecting this treating physician evaluation
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which established that plaintiff could only perform sedentary work, and if properly
credited, this opinion limiting plaintiff to sedentary work would require a finding of

11 disabled as of her fiftieth birthday based on the Medical Vocational Guidelines (Dkt. 16,
12 p. 7-8). The defendant argues that the ALJ properly assessed Dr. Peterson’s opinion
13 because of the limited three month duration, the determination of disability is reserved to
14 the Commissioner, the conclusions in the evaluation were inconsistent with other
15 evidence in the record including contemporaneous notes, and the opinion was
16 inconsistent with the reviewing physician’s opinion (Dkt. 20, p. 7).
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Regardless of whether Dr. Peterson’s assessment was supported by sufficient,
consistent evidence to establish plaintiff as limited to sedentary work, the ALJ did not err

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in rejecting this opinion. Dr. Peterson opined that plaintiff’s limitations would persist at
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the sedentary level for only three months (AR. 810). This short duration falls far short of
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the required twelve month period of impairment necessary to establish disability. See 20
C.F.R. §§ 416.905(a), 416.912(a) and (c). Because the opined limitations are only

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ORDER ON PLAINTIFF’S COMPLAINT - 4

1 expected to last three months, Dr. Peterson’s assessment is not relevant to establishing
2 disability. Therefore, the ALJ did not err by limiting the weight assigned to this opinion.
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(2)

Whether or not the ALJ provided sufficient reasons to reject the opinion of
Dr. Wheeler.

Kimberly Wheeler, Ph.D. evaluated plaintiff in September 2012 (AR. 802-06).

6 She was an examining psychologist and, therefore, the ALJ must provide “specific and
7 legitimate reasons that are supported by substantial evidence in the record” in order to
8 reject her contradicted opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996).
9 Dr. Wheeler diagnosed depression NOS, PTSD, borderline personality disorder, and
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alcohol dependence in tentative early remission (AR. 803). She observed plaintiff’s
incessant speech, hyperstartle, negative-self image, overreaction to anger, and depression
(AR. 803). Dr. Wheeler also rated plaintiff as markedly impaired in her ability to adapt

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to changes in a routine work setting and communicate and perform effectively in a work
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setting (AR. 804). Plaintiff was also severely impaired in her ability to complete a
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normal work day/week without interruptions from her psychological symptoms and
maintain appropriate behavior in a work environment (AR. 804). According to Dr.

18 Wheeler, plaintiff’s current impairments were not primarily the result of alcohol or drug
19 use within the past sixty days and would persist following sixty days of sobriety (AR.
20 805). The ALJ gave little weight to this opinion because it did not reflect plaintiff’s
21 functioning with appropriate treatment and indicated that chemical dependency
22 assessment/treatment was not recommended despite plaintiff’s tentative sobriety and
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ORDER ON PLAINTIFF’S COMPLAINT - 5

1 relapse (AR. 29). The ALJ also assigned less weight to Dr. Wheeler’s opinion as a one2 time examination based on claimant’s own report of functioning (AR. 29).
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The ALJ’s decision to disregard Dr. Wheeler’s opinion as a one-time evaluation
reliant on plaintiff’s subjective complaints was erroneous. This reasoning was
particularly inappropriate due to the great weight given to the opinions of reviewing

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psychologists Drs. Robinson and Regets (AR. 29). Even with only one evaluation, Dr.
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Wheeler was an examining psychologist and entitled to greater weight than the two
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nonexamining agency psychologists who merely reviewed the record. See Lester, supra,
81 F.3d at 830 (citations omitted); see also 20 C.F.R. § 404.1527(c)(1). While an ALJ

11 may rely on opinions of reviewing psychologists over the opinion of an examining
12 psychologist in some circumstances, there are good reasons why the ALJ should not have
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It should be noted that Dr. Wheeler did not over-rely on plaintiff’s self-reports.

15 According to the Ninth Circuit, “[an] ALJ may reject a treating physician’s opinion if it is
16 based ‘to a large extent’ on a claimant self-reports that have been properly discounted as
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incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan
v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair v. Bowen,

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885 F.2d 597, 605(9th Cir. 1989))). This situation is distinguishable from one in which
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the doctor provides his own observations in support of his assessments and opinions. See
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Ryan v.Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) (“an ALJ
does not provide clear and convincing reasons for rejecting an examining physician’s

24 opinion by questioning the credibility of the patient’s complaints where the doctor does

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 not discredit those complaints and supports his ultimate opinion with his own
2 observations”); see also Edlund v. Massanari, supra, 253 F.3d 1152, 1159 (9th Cir.
3 2001). According to the Ninth Circuit, “when an opinion is not more heavily based on a
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patient’s self-reports than on clinical observations, there is no evidentiary basis for
rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (citing

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Ryan, supra, 528 F.3d at 1199-1200).
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Here, Dr. Wheeler made clinical observations and conducted a mental status
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examination rather than merely relying on plaintiff’s self-reports. She observed incessant
speech and rapid shifting between topics (AR. 803). She also noted that plaintiff was a

11 poor listener and missed directions repeatedly (AR. 803). Plaintiff had hyperstartle reflex
12 and berated herself for the reaction (AR. 803). And, Dr. Wheeler reported that plaintiff
13 had a negative self-image, beating herself up “in a way that others would find baiting and
14 abrasive.” (AR. 803). Plaintiff was easily slighted, frequently misinterpreting statements
15 as a slight and quickly becoming defensive (AR. 803). During the mental status
16 examination, Dr. Wheeler found that plaintiff’s thought process and content were not
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normal, they were “organized and goal directed, though the only goal is to beat herself
up.” (AR. 805). Plaintiff had poor memory, concentration, insight, and judgment (AR.

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806). These findings were based on observations made by a trained psychologist, rather
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than parroting of symptoms described by the plaintiff. Therefore, the ALJ erred by
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disregarding Dr. Wheeler’s opinion as based on plaintiff’s own report of functioning.
Additionally, the ALJ faulted Dr. Wheeler’s opinion because it did not reflect

24 plaintiff’s functioning with appropriate treatment and indicated that chemical dependency

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 assessment or treatment was not recommended (AR. 29). Dr. Wheeler found that
2 plaintiff’s impairments were not primarily the result of drug or alcohol use in the past
3 sixty days and would persist even after sobriety (AR. 805). These statements imply that
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drug and alcohol addiction is not the root of the underlying impairments and sobriety
would not necessarily improve plaintiff’s condition. Her opinion was supported by

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observations of daily, marked depression which “may change with abstinence from
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alcohol, though such a deeply ingrained cognitive habit, might not.” (AR. 803). Instead,
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Dr. Wheeler recommended mental health treatment (AR. 805). This assessment was not
inconsistent with observations and opinion that plaintiff’s impairments would persist

11 despite sobriety and mental health treatment was necessary.
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Finally, the ALJ gave little weight to this opinion because Dr. Wheeler did not

13 assess plaintiff’s functioning with appropriate treatment (AR. 29). However, none of the
14 opinions in the record reflect plaintiff’s condition with treatment, including the opinions
15 from the consulting psychologists (AR. 29, 86-87, 90-91, 100-01,105-06). Reviewing
16 psychologists Drs. Robinson and Regets examined plaintiff’s records prior to Dr.
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Wheeler’s evaluation and before plaintiff began mental health treatment (AR. 86-87, 10001). Yet, the ALJ gave great weight to these non-examining psychologists whose

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opinions also failed to reflect plaintiff’s capacity with treatment. The ALJ’s rejection of
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Dr. Wheeler’s opinion for a flaw present in all the psychological assessments in the
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record, including those given great weight, was not legitimate.
Dr. Wheeler provided a consistent opinion based on her observations and clinical

24 findings. The ALJ gave little weight to this opinion, relying instead on opinions from

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 consulting physicians who reviewed plaintiff’s medical records prior to Dr. Wheeler’s
2 evaluation. The ALJ’s reasons for rejecting the opinion were not specific, legitimate, or
3 supported by substantial evidence in the record and, therefore, constitute error.
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The Ninth Circuit has “recognized that harmless error principles apply in the
Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

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(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
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Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in
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Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the
ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]

11 error harmless unless it can confidently conclude that no reasonable ALJ, when fully
12 crediting the testimony, could have reached a different disability determination.” Marsh
13 v. Colvin, 792 F.3d 1170, 2015 U.S. App. LEXIS 11920 at *7-*8 (9th Cir. July 10, 2015)
14 (citing Stout, 454 F.3d at 1055-56). The court further indicated that “the more serious the
15 ALJ’s error, the more difficult it should be to show the error was harmless.” Id. at *9
16 (noting that where the ALJ did not even mention a doctor’s opinion that plaintiff was
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“pretty much nonfunctional,” it could not “confidently conclude” that the error was
harmless) (citing Stout, 454 F.3d at 1056; Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,

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750 (6th Cir. 2007)). Even though “the district court gave persuasive reasons to
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determine harmlessness,” the Ninth Circuit reversed and remanded for further
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administrative proceedings, noting that “the decision on disability rests with the ALJ and
the Commissioner of the Social Security Administration in the first instance, not with a

24 district court.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-(3)).

ORDER ON PLAINTIFF’S COMPLAINT - 9

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In this case, the Court concludes that the ALJ’s error was harmful because

2 plaintiff’s RFC may not account for all of her impairments. According to the Ninth
3 Circuit, when an ALJ ignores or improperly discounts significant and probative evidence
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in the record favorable to a claimant’s position, such as an opinion from an examining or
treating doctor, the ALJ “thereby provide[s] an incomplete residual functional capacity

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[RFC] determination.” See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
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Furthermore, when the RFC is incomplete, the hypothetical question presented to the
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vocational expert relied on at step five necessarily also is incomplete, “and therefore the
ALJ’s reliance on the vocational expert’s answers [is] improper.” See id. at 1162. Here,

11 the ALJ improperly discounted Dr. Wheeler’s opinion as to plaintiff’s mental health
12 impairments and their limitations. Therefore, the resulting RFC is incomplete and the
13 subsequent vocational expert testimony is unreliable. Reversal is required.
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Generally when the Social Security Administration does not determine a

15 claimant’s application properly, “‘the proper course, except in rare circumstances, is to
16 remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart,
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379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put
forth a “test for determining when [improperly rejected] evidence should be credited and

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an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th
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Cir. 2000) (quoting Smolen, 80 F.3d at 1292). It is appropriate when:
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(1) the ALJ has failed to provide legally sufficient reasons for rejecting
such evidence, (2) there are no outstanding issues that must be resolved
before a determination of disability can be made, and (3) it is clear from
the record that the ALJ would be required to find the claimant disabled
were such evidence credited.

ORDER ON PLAINTIFF’S COMPLAINT - 10

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Harman, supra, 211 F.3d at 1178 (quoting Smolen v. Chater, 80 F.3d 1273, 1292)).
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Plaintiff argues for remand for benefits because the record is complete and if
Dr. Wheeler’s opinion were credited it would establish an inability to sustain

5 employment (Dkt. 16, p. 11-12). The Court disagrees. Outstanding issues must be
6 resolved. See Smolen, supra, 80 F.3d at 1292.
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The ALJ’s improper evaluation of Dr. Wheeler’s opinion led to an RFC

8 which may not have adequately accounted for the full extent of plaintiff’s mental
9 impairments. It is not the Court’s role to interpret the evidence and determine
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plaintiff’s RFC. The final responsibility for deciding issues such as an individual’s
RFC is reserved to the Commissioner. Social Security Ruling (SSR) 96-5P. As a
result, further proceedings are necessary to reevaluate Dr. Wheeler’s opinion,

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formulate a new RFC if required, and complete steps four and five of the disability
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analysis as needed.
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Even if Dr. Wheeler’s testimony established an inability to sustain
employment which translated to disability, further proceedings would be necessary.

18 Evidence in the record shows a significant history of substance abuse, which could
19 result in ineligibility for benefits if the substance abuse is a contributing factor to
20 plaintiff’s disability. 42 U.S.C. §§423(d)(2)(C), 1382c(a)(3)(J); Bustamante v.
21 Massanari, 262 F.3d 949, 954 (2001). An initial determination that plaintiff was
22 disabled would necessitate the ALJ conduct a second five-step inquiry to determine
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if the claimant would still be disabled in the absence of substance abuse.

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1 Bustamante, supra, 262 F.3d at 954. Therefore, remand for immediate award of
2 benefits is not appropriate in this case. Outstanding issues remain and further
3 proceedings are necessary.
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CONCLUSION
Based on these reasons and the relevant record, the Court ORDERS that this

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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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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 2nd day of November, 2015.

A

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J. Richard Creatura
United States Magistrate Judge

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