Shawl v. Berryhill

Filing 15

ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS by Judge David W. Christel. (KEB)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 DOROTHY I. SHAWL, 11 12 13 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, CASE NO. 3:17-CV-05058-DWC ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 14 Defendant. 15 16 Plaintiff Dorothy I. Shawl filed this action, pursuant to 42 U.S.C. § 405(g), for judicial 17 review of Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) 18 and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 19 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 20 the undersigned Magistrate Judge. See Dkt. 5. 21 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 22 erred when she failed to properly consider the medical opinion evidence of physicians Drs. J. 23 Dalton, M.D. and Paul Seville, M.D. Had the ALJ properly considered the opinions of these two 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 1 1 doctors, the residual functional capacity (“RFC”) may have included additional limitations. The 2 ALJ’s error is therefore not harmless, and this matter is reversed and remanded pursuant to 3 sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security 4 (“Commissioner”) for further proceedings consistent with this Order. 5 6 FACTUAL AND PROCEDURAL HISTORY On May 21, 2013, Plaintiff filed applications for DIB and SSI, alleging disability as of 7 February 13, 2013. See Dkt. 10, Administrative Record (“AR”) 19. The application was denied 8 upon initial administrative review and on reconsideration. See AR 19. A hearing was held before 9 ALJ Cynthia D. Rosa on February 3, 2015. See AR 36-60. In a decision dated May 21, 2015, the 10 ALJ determined Plaintiff to be not disabled. See AR 19-29. Plaintiff’s request for review of the 11 ALJ’s decision was denied by the Appeals Council, making the ALJ’s decision the final decision 12 of the Commissioner. See AR 1-6; 20 C.F.R. § 404.981, § 416.1481. 13 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred in: (1) evaluating the 14 medical evidence; (2) discounting Plaintiff’s credibility; (3) rejecting lay witness evidence; (4) 15 assessing Plaintiff’s RFC; (5) finding Plaintiff could perform her past relevant work; and (6) 16 finding Plaintiff could perform other jobs existing in significant numbers in the national 17 economy. Dkt. 12, pp. 1-2. 18 19 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 20 social security benefits if the ALJ’s findings are based on legal error or not supported by 21 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 22 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 2 1 2 3 DISCUSSION I. Whether the ALJ incorrectly interpreted the medical evidence. The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 4 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 5 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 6 502, 506 (9th Cir. 1990)). When a treating or examining physician’s opinion is contradicted, the 7 opinion can be rejected “for specific and legitimate reasons that are supported by substantial 8 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 9 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can 10 accomplish this by “setting out a detailed and thorough summary of the facts and conflicting 11 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 12 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 13 The ALJ “may reject the opinion of a non-examining physician by reference to specific 14 evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing 15 Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996)); Andrews, 53 F.3d at 1041). However, all of 16 the determinative findings by the ALJ must be supported by substantial evidence. See Bayliss, 17 427 F.3d at 1214 n.1 (citing Tidwell, 161 F.3d at 601); see also Magallanes, 881 F.2d at 750 18 (“Substantial evidence” is more than a scintilla, less than a preponderance, and is such “relevant 19 evidence as a reasonable mind might accept as adequate to support a conclusion”). 20 21 A. Dr. J. Dalton, M.D. Plaintiff alleges the ALJ failed to provide legally sufficient reasons for giving little 22 weight to the July 15, 2013 opinion of Dr. Dalton. See Dkt. 12, 6-8. After reviewing Plaintiff’s 23 medical records, Dr. Dalton found Plaintiff cannot perform even sedentary work. See AR 523. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 3 1 Dr. Dalton also found Plaintiff (1) has marked postural limitations, (2) is markedly limited in her 2 ability to perform activities within a schedule, maintain regular attendance and be punctual 3 within customary tolerances, and (3) is markedly limited in her ability to perform routine tasks 4 without undue supervision. AR 523. 5 In considering Dr. Dalton’s opinion, the ALJ stated, in full: 6 Little weight is given to the July 15, 2013 review of medical evidence from Washington Department of Social and Health Services (DSHS) physician J. Dalton, MD. Dr. Dalton’s opinion that the claimant is unable to perform even sedentary exertional activity, and has marked postural restrictions, is contradicted by more recent medical treatment notes showing the claimant able to shop all day, and perform household chores for hours at a time. 7 8 9 AR 26-27 (internal citations omitted). 10 The ALJ’s sole reason for giving little weight to Dr. Dalton’s opinon is because the 11 opinion is contradicted by Plaitniff’s daily activities as noted in more recent treatment notes. AR 12 26-27. The ALJ, however, does not adequately explain how Dr. Dalton’s opinion is contradicted 13 by more recent medical treatment notes. See id.; see also Embrey, 849 F.2d at 421-22 (“it is 14 incumbent on the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding 15 the physicians’ findings[;]” conclusory reasons do “not achieve the level of specificity” required 16 to justify an ALJ’s rejection of an opinion). The ALJ does not explain what part of Dr. Dalton’s 17 opinion is inconsistent with which reported daily activity, or in what way they are inconsistent. 18 See AR 26-27. For example, the ALJ does not explain how Plaintiff’s reported shopping activity 19 contradicts Dr. Dalton’s finding of Plaintiff’s inability to perform even sedentary work. See AR 20 26-27, 523. Without an explanation regarding how portions of Dr. Dalton’s opinion are 21 inconsistent with Plaintiff’s daily activities recorded in more recent medical treatment notes, the 22 Court is unable to assess the ALJ’s decision to assign the opinion little weight. Thus, this 23 decision by the ALJ is conclusory. See Embrey, 849 F.2d at 421-22. Therefore, the Court finds 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 4 1 the noted inconsistencies are not a valid reason for discounting Dr. Dalton’s opinion. See Brown2 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“the agency [must] set forth the reasoning 3 behind its decisions in a way that allows for meaningful review”). 4 Even if the ALJ had been clear about how part of Dr. Dalton’s medical opinion was 5 inconsistent with more recent medical treatment notes, the ALJ did not address all relevant 6 aspects of the relied-upon records. See AR 26-27. The records indicate Plaintiff’s daily activities, 7 particularly shopping and household chores, were performed in a limited fashion and caused 8 additional pain. See AR 961, 988, 1008, 1017; see also Hutchinson v. Colvin, 2016 WL 6871887, 9 *4 (W.D. Wash., Nov. 22, 2016, J. Creatura) (noting the ALJ’s treatment of the evidence of 10 record suggested improper “cherry-picking” to support the ALJ’s decision “while failing to 11 address aspects of the record supporting a finding of severe limitations”); Flores v. Shalala, 49 12 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not reject significant probative evidence 13 without explanation”). 14 As to household chores, on December 15, 2014, Plaintiff reported she “did a few chores 15 that afternoon.” AR 961. As to shopping, on September 16, 2014, Plaintiff reported “walk[ing] 16 all through Walmart and the grocery store.” AR 1008. On October 10, 2014, Plaintiff reported 17 “she had been shopping, leaning on cart, all day,” and on December 15, 2014, Plaintiff reported 18 she had been “xmas shopping on Friday.” AR 961, 988. However, after the Christmas shopping, 19 Plaintiff reported “more back pain and pain all over.” AR 961. On the day she reported shopping 20 by way of leaning on a cart, she presented with “still pretty severe” upper back pain. AR 988. On 21 the day she reported walking through Walmart and the grocery store, she presented with “chronic 22 back pain” and a “new pain in her upper/mid back.” AR 1008. She also stated she had done 23 “more walking than normal.” Id. On three of these four clinical visits, the primary medical 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 5 1 reason was back pain. See AR 988, 1008, 1017. On all four visits she reported extensively on 2 back pain. See AR 961, 988, 1008, 1017. 3 The Court also notes the ALJ erred in not providing any rationale for rejecting Dr. 4 Dalton’s finding of marked non-exertional limitations regarding her ability to (1) perform 5 activities within a schedule, (2) maintain regular attendance and be punctual within customary 6 tolerances, and (3) in her ability to perform routine tasks without undue supervision. See AR 267 27; see also Dkt. 12, p.7. The ALJ “need not discuss all evidence presented.” Vincent ex rel. 8 Vincent v. Heckler, 739 F.3d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject 9 ‘significant probative evidence’ without explanation.” Flores 49 F.3d at 570-71 (9th Cir. 1995) 10 (quoting Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for 11 disregarding [such] evidence.” Flores, 49 F.3d at 571. 12 The ALJ did discuss some of Dr. Dalton’s findings, as explained above, but failed to 13 discuss the marked non-exertional limitations in her ability to perform work activities. See AR 14 26-27; see also discussion supra. Dr. Dalton’s opinion as to Plaintiff’s non-exertional limitations 15 in her ability to perform work activities is related to her ability to be employed, and this evidence 16 is therefore significant and probative. The ALJ gave little weight to Dr. Dalton’s opinion, 17 selectively reading the doctor’s notes only to conclude Plaintiff is “able to shop all day, and 18 perform household chores for hours at a time.” AR 27. The ALJ did not, however, discuss 19 plaintiff’s marked non-exertional limitations opined by Dr. Dalton regarding her ability to (1) 20 perform activities within a schedule, (2) maintain regular attendance and be punctual within 21 customary tolerances, and (3) in her ability to perform routine tasks without undue supervision. 22 See AR 23-27. Further, the ALJ did not include these opined limitations in the RFC. See AR 23 23. Because the ALJ’s decision is silent as to Dr. Dalton’s opinion regarding non-exertional 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 6 1 functional limitations, the Court cannot determine if the ALJ properly considered the opined 2 limitations or simply ignored the evidence. See AR 23-27. 3 In conclusion, the ALJ failed to clearly articulate her reasons for giving little weight to 4 Dr. Dalton’s July 2013 opinion and also failed to discuss significant probative evidence. For 5 these reasons, the ALJ did not provide specific, legitimate reasons supported by substantial 6 evidence for giving little weight to Dr. Dalton’s July 2013 opinion. Accordingly, the ALJ 7 erred. 8 “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 9 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the 10 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 11 Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 12 F.3d at 1115. The determination as to whether an error is harmless requires a “case-specific 13 application of judgment” by the reviewing court, based on an examination of the record made 14 “‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 15 1118-19 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). 16 Had the ALJ properly considered Dr. Dalton’s opinion, she may have included non- 17 exertional limitations in the RFC and in the hypothetical questions posed to the vocational expert 18 (“VE”), Steve Duchesne. For example, Dr. Dalton opined Plaintiff is markedly limited in her 19 ability to (1) perform activities within a schedule, (2) maintain regular attendance and be 20 punctual within customary tolerances, and (3) in her ability to perform routine tasks without 21 undue supervision. AR 523. The RFC did not contain any non-exertional limitations. See AR 23. 22 If the non-exertional limitations were included in the RFC and hypothetical questions, the 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 7 1 ultimate disability determination may change. Therefore, the ALJ’s error is not harmless and 2 requires reversal. 3 4 B. Dr. Paul Z. Seville, M.D. Plaintiff contends the ALJ erred when she failed to properly consider Dr. Seville’s 5 opinion regarding Plaintiff’s maximum standing and walking capacity. See Dkt. 12, p. 5. 6 Defendant asserts the ALJ incorporated Dr. Seville’s opined standing and walking limitations in 7 the RFC. Dkt. 13, pp. 6-7. 8 On September 27, 2013, Dr. Seville examined Plaintiff and reviewed her medical records. 9 AR 593-97. He opined, in relevant part, that Plaitniff’s “maximum standing and walking 10 capacity is limited to less than two hours.” AR 596. The ALJ assigned some weight overall to 11 Dr. Seville’s opinion. AR 26. The ALJ did not, however, discuss Dr. Seville’s opinion that 12 Platiniff’s ability to stand and walk was limited to less than two hours. 1 See AR 26. Further, in 13 the RFC, the ALJ included a limitation that Plaitniff can “stand up to 2-hours, and walk up to 214 hours;” rather than stand and walk for less than two hours. AR 23. 15 Because the ALJ did not discuss Dr. Seville’s opinion regarding Plaintiff’s standing and 16 walking limitations and the limitations in the RFC do not mirror Dr. Seville’s findings, the Court 17 cannot determine if the ALJ properly considered Dr. Seville’s opinion regarding Plaitniff’s 18 standing and walking limitations or simply ignored the evidence. On remand, the ALJ must re19 assess Dr. Seville’s opinion and state with specificity her findings regarding regarding Dr. 20 Seville’s standing and walking limitations. 21 22 23 24 1 The ALJ found Dr. Seville’s opinion that Plaintiff should not climb, can occasionally stoop, kneel and crouch, and would have no limitations on sitting was “consistent with the evidence as a whole.” AR 26. The ALJ determined Dr. Seville’s finding regarding Plaintiff’s maximum lift and carry ability to be excessive “in lieu of the claimant’s spinal impairments and symptomatic back pain.” AR 26 (ALJ stating Dr. Seville’s opinion that Plaintiff could lift and carry up to 50 pounds occasionally and 25 pounds frequently is excessive). ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 8 1 II. Whether the ALJ provided sufficient reasons for discrediting lay witness and Plaintiff testimony. 2 Plaintiff contends the ALJ failed to give clear and convincing reasons for rejecting 3 Plaintiff’s testimony about her symptoms and limitations, and failed to provide germane reasons 4 for discounting the lay witness testimony. Dkt. 12, pp. 8-14. The Court concludes the ALJ 5 committed harmful error in assessing the medical opinion evidence. See supra Section I. Because 6 the ALJ’s reconsideration of the medical opinion evidence may impact her assessment of 7 Plaintiff’s subjective testimony and lay witness testimony, the ALJ must reconsider it on remand. 8 III. Whether the ALJ erred in finding the Plaintiff not disabled at Steps 4 and 5. 9 Plaintiff also maintains the ALJ erred by finding Plaintiff can perform her past relevant 10 work, and other work existing in significant number in the national economy, as such work is 11 defined in the Dictionary of Occupational Titles (“DOT”). Dkt. 12, pp. 3-4. Specifically, Plaintiff 12 contends the ALJ committed harmful error because a hypothetical question with the ALJ’s RFC 13 finding was not offered to the VE. 2 See id. 14 Regardless of whether the ALJ erred at Steps 4 and 5, the ALJ committed harmful error 15 when she did not properly consider the medical evidence. See supra Section I. As the ALJ must 16 re-assess Plaintiff’s RFC on remand, she must also re-evaluate the findings at Steps 4 and 5 to 17 determine if Plaintiff can perform her past relevant work, or if there are jobs existing in 18 significant numbers in the national economy Plaintiff can perform in light of the re-assessed 19 RFC. See Watson v. Astrue, 2010 WL 4269545, *5 (C.D. Cal. Oct. 22, 2010) (finding the ALJ’s 20 RFC determination and hypothetical questions posed to the VE defective when the ALJ did not 21 properly consider a doctor’s findings). 22 23 24 2 The hypothetical question posed to the VE is inconsistent with the RFC. The RFC states Plaintiff can lift less than 10 pounds frequently; however, the hypothetical posed to the VE states Plaintiff could lift and carry 10 pounds frequently. On remand, any hypothetical question posed to a VE should mirror the RFC. See AR 23, 56. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 9 1 IV. 2 Whether the case should be remanded for an award of benefits. Plaintiff argues this matter should be remanded with a direction to award benefits. See 3 Dkt. 12, p.15. The Court may remand a case “either for additional evidence and findings or to 4 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the 5 Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand 6 to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 7 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for 8 determining when evidence should be credited and an immediate award of benefits directed[.]” 9 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded 10 where: 11 12 13 (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. 14 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 15 The Court has determined the ALJ must re-evaluate the medical opinions of Drs. Dalton 16 and Seville, Plaintiff’s testimony, lay witness testimony, and pose a hypothetical question to the 17 testifying VE that accurately reflects Plaintiff’s RFC. Therefore, because outstanding issues must 18 be resolved, remand for further administrative proceedings is appropriate. 19 20 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 21 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 this matter is remanded for further administrative proceedings in accordance with the findings 2 contained herein. 3 Dated this 22nd day of September, 2017. 4 5 A 6 David W. Christel United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11

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