Moen v. Colvin

Filing 29

ORDER Reversing and Remanding Defendant's Decision to Deny Benefits by Judge Theresa L Fricke. (TW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHRISTINE M. MOEN,
Case No. 3:16-cv-05804-TLF

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Plaintiff,
v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security

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ORDER REVERSING AND
REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS

Defendant.

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Plaintiff has brought this matter for judicial review of defendant’s denial of her

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application for supplemental security income (SSI) benefits. The parties have consented to have

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this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil

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Procedure 73; Local Rule MJR 13. For the reasons set forth below, the Court finds that

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defendant’s decision to deny benefits should be reversed, and that this matter should be remanded

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for further administrative proceedings.
FACTUAL AND PROCEDURAL HISTORY

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On November 5, 2009, plaintiff filed an application for SSI benefits, alleging she became

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disabled beginning February 27, 2007. Dkt. 12, Administrative Record (AR) 623. That

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application was denied on initial administrative review and on reconsideration. AR 18. A hearing

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was held before an administrative law judge (ALJ), at which plaintiff appeared and testified. AR

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35-74.

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 1

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In a decision dated February 15, 2012, the ALJ found that plaintiff could perform other

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jobs existing in significant numbers in the national economy and therefore that she was not

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disabled. AR 18-29. Plaintiff’s request for review was denied by the Appeals Council, which

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plaintiff then appealed to this Court. AR 1, 623. On March 26, 2014, based on the stipulation of

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the parties, the Court remanded the matter to the Commissioner for further administrative

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proceedings. AR 692-94.

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On remand, another hearing was held before the same ALJ, at which plaintiff appeared

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and testified, as did a vocational expert. AR 649-665. In a decision dated April 29, 2015, the ALJ

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again found plaintiff could perform other jobs existing in significant numbers in the national

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economy, and therefore that she was not disabled. AR 623-640. It appears the Appeals Council

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did not assume jurisdiction of the matter, making the ALJ’s decision the Commissioner’s final

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decision, which plaintiff appealed in a complaint filed with this Court on September 23, 2016.

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Dkt. 3; 20 C.F.R. § 416.1481.

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Plaintiff seeks reversal of the ALJ’s decision and remand for further administrative
proceedings, arguing the ALJ erred:
(1)

in evaluating the medical evidence, including the opinions of Robert E.
Schneider, Ph.D., M. Kristin Price, Ph.D., ; Daniel K. Beavers, D.O.,
Tobias A. Ryan, Psy.D., Donald D. Ramsthel, M.D., Gary Pape, M.D.,
Kye Park, M.D., Cynthia Collingwood, Ph.D., and Bruce Eather, Ph.D.

(2)

in discounting plaintiff’s credibility;

(3)

in rejecting the lay witness evidence;

(4)

in assessing plaintiff’s residual functional capacity (
“RFC and
”);

(5)

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in finding plaintiff could perform other jobs existing in significant
numbers in the national economy.

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 2

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For the reasons set forth below, the Court agrees the ALJ erred in evaluating the opinion of Dr.

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Ryan, and therefore in assessing plaintiff’s RFC, in finding plaintiff to be capable of performing

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other jobs, and in determining plaintiff to be disabled. Accordingly, the Court finds that the

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decision to deny benefits should be reversed and that this matter should be remanded for further

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consideration of those issues.

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DISCUSSION

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The Commissioner’s determination that a claimant is not disabled must be upheld if the

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“
proper legal standards have been applied, and the “
”
substantial evidence in the record as a whole

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supports that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see also
”

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Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan,

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772 F.Supp. 522, 525 (E.D. Wash. 1991).“A decision supported by substantial evidence

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nevertheless will be set aside if the proper legal standards were not applied in weighing the

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evidence and making the decision. Carr, 772 F.Supp. at 525 (citing Brawner v. Sec’y of Health
”

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and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is“such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v.
”

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Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 1193.

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The Commissioner’s findings will be upheld “if supported by inferences reasonably drawn

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from the record. Batson, 359 F.3d at 1193. Substantial evidence requires the Court to determine
”

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whether the Commissioner’s determination is “supported by more than a scintilla of evidence,

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although less than a preponderance of the evidence is required. Sorenson v. Weinberger, 514
”

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F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence admits of more than one rational

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interpretation, that decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
”

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That is, “[w]here there is conflicting evidence sufficient to support either outcome, the Court “must
”

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 3

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affirm the decision actually made. Allen, 749 F.2d at 579 (quoting Rhinehart v. Finch, 438 F.2d
”

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920, 921 (9th Cir. 1971)).

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I.

The ALJ’s Evaluation of the Medical Opinion Evidence

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The ALJ is responsible for determining credibility and resolving ambiguities and

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conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where

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the evidence is inconclusive, “questions of credibility and resolution of conflicts are functions

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solely of the [ALJ]. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such situations,
”

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“ ALJ’s conclusion must be upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595,
the
”

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601 (9th Cir. 1999). Determining whether inconsistencies in the evidence “ material (or are in
are

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fact inconsistencies at all) and whether certain factors are relevant to discount medical opinions
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“
falls within this responsibility. Id. at 603.
”

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In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings “must

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be supported by specific, cogent reasons. Reddick, 157 F.3d at 725. The ALJ can do this “by
”

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setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating

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his interpretation thereof, and making findings. Id. The ALJ also may draw inferences“logically
”

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flowing from the evidence. Sample, 694 F.2d at 642. Further, the Court itself may draw “specific
”

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and legitimate inferences from the ALJ’s opinion. Magallanes v. Bowen, 881 F.2d 747, 755, (9th
”

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Cir. 1989).

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

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opinion of either a treating or examining physician. Trevizo v. Berryhill, 862 F.3d 987, 997 (9th

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Cir. 2017) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). Even

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when a treating or examining physician’s opinion is contradicted, an ALJ may only reject that

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opinion “by providing specific and legitimate reasons that are supported by substantial evidence.
”

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Id. However, the ALJ “need not discuss all evidence presented to him or her. Vincent on Behalf of
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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 4

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Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in

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original). The ALJ must only explain why “significant probative evidence has been rejected. Id.;
”

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see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield v. Schweiker, 732 F.2d

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605, 610 (7th Cir. 1984).

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In general, more weight is given to a treating physician’s opinion than to the opinions of

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those who do not treat the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). On

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the other hand, an ALJ need not accept the opinion of a treating physician, “if that opinion is

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brief, conclusory, and inadequately supported by clinical findings or“by the record as a whole.
”
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Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Thomas v.

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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th

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Cir. 2001). An examining physician’s opinion is “
entitled to greater weight than the opinion of a

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nonexamining physician. Lester, 81 F.3d at 830-31. A non-examining physician’s opinion may
”

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constitute substantial evidence if“it is consistent with other independent evidence in the record.
”

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Id. at 830-31; Tonapetyan, 242 F.3d at 1149.

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A.

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Dr. Ryan, examining psychologist
Dr. Ryan, an examining psychologist, evaluated plaintiff in late January 2014, and

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provided an opinion (quoted in relevant part) that Ms. Moen had“a moderate[ly] to severely

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impaired ability to maintain a daily/weekly work schedule because of chronic pain. AR 1107.
”

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The ALJ gave“little weight to this opinion because (1)“the effect of physical pain is not Dr. Ryan’s
”

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area of expertise, and (2) Dr. Ryan “based that statement on [plaintiff’s] subjective report, even
”

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though [Dr. Ryan] discredited her judgment and insight. AR 637.
”

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Plaintiff asserts the ALJ erred; Ms. Moen argues that as a clinical psychologist, Dr. Ryan

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was qualified to state his opinion about the observed effects of chronic pain on her ability to

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function mentally. The Court agrees. The ALJ points to no authority for the proposition that a

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 5

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licensed psychologist cannot express an opinion concerning the effects of pain on mental

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functioning, or that an acceptable medical source must be an expert in a particular area in order

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to have an opinion about its effects. Nor does the record indicate Dr. Ryan necessarily relied on

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plaintiff’s subjective report as opposed to his own objective clinical findings in forming his

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opinion. AR 1102-1107; Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (
“[W]hen an

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opinion is not more heavily based on a patient’s self-reports than on clinical observations, there is

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no evidentiary basis for rejecting the opinion. ).
”

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II.

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The ALJ’s RFC Assessment
The Commissioner employs a five-step “sequential evaluation process to determine
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whether a claimant is disabled. 20 C.F.R. § 416.920. If the claimant is found disabled or not

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disabled at any particular step thereof, the disability determination is made at that step, and the

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sequential evaluation process ends. Id. A claimant’s RFC assessment is used at step four of the

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process to determine whether he or she can do his or her past relevant work, and at step five to

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determine whether he or she can do other work. Social Security Ruling (SSR) 96-8p, 1996 WL

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374184, at *2. It is what the claimant “can still do despite his or her limitations. Id.
”

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A claimant’s RFC is the maximum amount of work the claimant is able to perform based

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on all of the relevant evidence in the record. SSR 96-8p, 1996 WL 374184, at *2. However, an

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inability to work must result from the claimant’s“
physical or mental impairment(s). Id. Thus, the
”

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ALJ must consider only those limitations and restrictions “attributable to medically determinable

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impairments. Id. In assessing a claimant’s RFC, the ALJ also is required to discuss why the
”

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claimant’s“symptom-related functional limitations and restrictions can or cannot reasonably be

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accepted as consistent with the medical or other evidence. Id. at *7.
”

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The ALJ found plaintiff had the following mental RFC:

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She can sustain concentration, persistence, and pace for simple, routine,

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 6

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repetitive work in a predictable work environment, with few – if any –
changes in the normal routine. She should have the opportunity to learn
tasks by visual or other demonstration, as opposed to a requirement of
mastering written materials. She can engage in brief, routine, normal
interaction with coworkers and supervisors.

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AR 628 (emphasis in the original). But because as discussed above the ALJ erred in failing to

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properly evaluate the opinion of Dr. Ryan regarding plaintiff’s ability to maintain a daily/weekly

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work schedule, the ALJ’s RFC assessment cannot be said to completely and accurately describe

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all of her functional limitations. Accordingly, the ALJ erred here as well.

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III.

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The ALJ’s Step Five Determination
If a claimant cannot perform his or her past relevant work, at step five of the sequential

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disability evaluation process the ALJ must show there are a significant number of jobs in the

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national economy the claimant is able to do. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.

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1999); 20 C.F.R. § 416.920(d), (e). The ALJ can do this through the testimony of a vocational

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expert. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000); Tackett, 180 F.3d at 1100-1101.

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An ALJ’s step five determination will be upheld if the weight of the medical evidence supports

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the hypothetical posed to the vocational expert. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir.

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1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). The vocational expert’s

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testimony therefore must be reliable in light of the medical evidence to qualify as substantial

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evidence. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Accordingly, the ALJ’s

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description of the claimant’s functional limitations “must be accurate, detailed, and supported by

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the medical record. Id. (citations omitted).
”

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The ALJ found plaintiff could perform other jobs existing in significant numbers in the

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national economy, based on the vocational expert’s testimony offered at the hearing in response

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to a hypothetical question concerning an individual with the same age, education, work

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experience and RFC as plaintiff. AR 639-640. But because as discussed above the ALJ erred in

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 7

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assessing plaintiff’s RFC, the hypothetical question the ALJ posed to the vocational expert– and

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thus that expert’s testimony and the ALJ’s reliance thereon– cannot be said to be supported by

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substantial evidence or free of error.

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IV.

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Remand for Further Administrative Proceedings
The Court may remand this case“either for additional evidence and findings or to award

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benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court
”

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reverses an 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
”

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Cir. 2004) (citations omitted). Thus, it is“the unusual case in which it is clear from the record that

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the claimant is unable to perform gainful employment in the national economy, that“remand for
”

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an immediate award of benefits is appropriate. Id.
”

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Benefits may be awarded where “the record has been fully developed and“
”
further

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administrative proceedings would serve no useful purpose. Smolen, 80 F.3d at 1292; Holohan v.
”

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Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

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(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the
claimant’s] 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.

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Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002).

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Because issues still remain in regard to plaintiff’s ability to maintain a daily/weekly work

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schedule, her RFC, and her ability to perform other jobs exiting in significant numbers in the

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national economy, remand for further consideration of those issues is warranted.

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CONCLUSION

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Based on the foregoing discussion, the Court finds the ALJ improperly determined

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plaintiff to be not disabled. Defendant’s decision to deny benefits therefore is REVERSED and

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ORDER REVERSING AND REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS - 8

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this matter is REMANDED for further administrative proceedings.
Dated this 20th day of September, 2017.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER REVERSING AND REMANDING DEFENDANT’S
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