Lien v. Berryhill

Filing 18

ORDER re 4 Complaint 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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TROY T LIEN,
Plaintiff,

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CASE NO. 3:17-CV-05603-JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for
Operations,
Defendant.

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local

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Magistrate Judge Rule MJR 13 (see also Consent to Proceed before a United States Magistrate

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Judge, Dkt. 2). This matter has been fully briefed. See Dkt. 11, 16, 17.

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After considering and reviewing the record, the Court concludes that the ALJ failed to

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consider a probative medical opinion. In this case, the ALJ afforded significant weight to a

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nonexamining physician’s opinion. However, another nonexamining physician offered a

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contradictory opinion from the same time period, which the ALJ failed to discuss. This omission

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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was not harmless error because the omitted opinion, which supported plaintiff’s claim, may have

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resulted in a different disability determination.

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BACKGROUND

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Plaintiff, TROY T. LIEN, was born in 1964 and was fifty years old on the amended

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alleged disability onset date of October 26, 2014. See AR. 22, 44, 178-81, 182-87. Plaintiff

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completed the 12th grade. AR. 47. Plaintiff has a work history in manual labor. AR. 227-38.

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

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obstructive pulmonary disease (COPD); hepatitis C; degenerative joint disease of the lumbar

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spine; and major depressive disorder (20 CFR 404.1520(c) and 416.920(c)).” AR. 24.
At the time of the hearing, plaintiff was staying with friends and sleeping on the couch.
AR. 53-54.

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PROCEDURAL HISTORY
Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. §

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423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. §

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1382(a) (Title XVI) of the Social Security Act were denied initially and following

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reconsideration. See AR. 69, 70, 91, 92. Plaintiff’s requested hearing was held before

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Administrative Law Judge Gary Elliott (“the ALJ”) on September 2, 2015. See AR. 41-68. On

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November 12, 2015, the ALJ issued a written decision in which the ALJ concluded that plaintiff

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was not disabled pursuant to the Social Security Act. See AR. 19-39.

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of

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social security benefits if the ALJ's findings are based on legal error or not supported by

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substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th

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Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

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DISCUSSION
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ

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provided sufficient reasons to reject plaintiff’s subjective claims of need for irregular breaks and

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naps during the day; (2) Whether the ALJ provided sufficient reasons to reject the lay testimony;

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(3) Whether the record was complete without any medical source statements from the period at

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issue; (4) Whether the ALJ erred in passing over Dr. Hurley’s opinion; and (5) Whether, given

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these errors, the RFC and hypothetical questions were complete such that substantial evidence

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supported the step five findings. See Dkt. 11, p. 1. Because issue (4) is dispositive, this issue is

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discussed first.

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I.

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Plaintiff alleges that the ALJ erred by “pass[ing] over in silence” the medical opinion of

Whether the ALJ erred in passing over Dr. Hurley’s opinion.

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nonexamining physician Dr. Hurley. Dkt. 11, p.9. The ALJ “may reject the opinion of a non-

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examining physician by reference to specific evidence in the medical record.” Sousa v.

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Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing Gomez v. Chater, 74 F.3d 967, 972 (9th

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Cir. 1996)); Andrews v. Shalala, 53 F.3d 1035, 1041(9th Cir. 1995). However, all of the

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determinative findings by the ALJ must be supported by substantial evidence. See Bayliss v.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601

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(9th Cir. 1999)).

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Dr. Hurley reviewed plaintiff’s medical file and issued an opinion stating that plaintiff’s

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functional limitations restricted him to sedentary activities. AR. 483. Further, Dr. Hurley opined

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that it was questionable that plaintiff’s COPD would improve even if plaintiff’s pneumonia

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cleared. Id. The ALJ did not reject Dr. Hurley’s opinion by reference to a specific record; in

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fact, the ALJ did not discuss the opinion at all. The Ninth Circuit has held that “where an ALJ

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does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting

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one medical opinion over another, he errs.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

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2014) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). Moreover, the

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Commissioner “may not reject ‘significant probative evidence’ without explanation.” Flores v.

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Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395

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(9th Cir. 1984)). The “ALJ’s written decision must state reasons for disregarding [such]

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evidence.” Id. at 571. Because the ALJ did not explain why he might be rejecting Dr. Hurley’s

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opinion, his decision is not supported by substantial evidence.

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The ALJ gave significant weight to Dr. Rubio, a nonexamining medical source, and

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partial weight to Dr. Davenport, an examining medical source. AR. 31. The ALJ relied on Dr.

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Rubio’s opinion stating it was consistent with the record as a whole. Id. Dr. Hurley’s opinion

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was not mentioned in the ALJ decision. Doctors Hurley and Rubio reached different conclusions

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regarding plaintiff’s functional capacity. Dr. Hurley opined that plaintiff was limited to a

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sedentary exertional level. AR. 483. Dr. Rubio opined that plaintiff was capable of a medium

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exertional level. AR. 31, 100. The ALJ has the authority to reconcile contradicting evidence in

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the record, but cannot reject a probative opinion without explanation. Flores, supra, 49 F.3d at

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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570-71 (citations omitted). Had he discussed Dr. Hurley’s opinion, the ALJ would be required to

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reject it by “reference to specific evidence in the medical record.” Sousa, supra, 143 F.3d at 1244

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(citations omitted). Because he overlooked Dr. Hurley’s opinion, the ALJ erred.

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The Ninth Circuit has “recognized that harmless error principles apply in the Social

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

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Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th Cir. 2006) (collecting

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cases)). The Ninth Circuit noted that “in each case we look at the record as a whole to determine

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[if] the error alters the outcome of the case.” Id. The court further indicated that “the more

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serious the ALJ’s error, the more difficult it should be to show the error was harmless.” Marsh v.

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Colvin, 792 F.3d 1170, 2015 U.S. App. LEXIS 11920 at *7-*8 (9th Cir. July 10, 2015) (citing

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Stout, 454 F.3d at 1055-56) (noting that where the ALJ did not even mention a doctor’s opinion

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that plaintiff was “pretty much nonfunctional,” it could not “confidently conclude” that the error

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was harmless); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 750 (6th Cir. 2007)).

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Here, the omission of Dr. Hurley’s opinion is not harmless because Dr. Hurley opined

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that plaintiff was limited to sedentary work. AR. 483. At the sedentary exertional level, plaintiff

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would have been per se disabled pursuant to the Medical Vocational Guidelines because of his

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age, education, and work history. See AR. 33; 20 C.F.R § 404, Subpart P, App. 2 § 201.12.

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Therefore, the ALJ’s consideration of this opinion may have resulted in a different disability

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determination.

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Defendant believes this oversight is harmless error because a nonexamining medical

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source is entitled to less weight than an examining medical source. Dkt. 16, p. 6. Defendant

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refers to Dr. Hurley’s opinion as a “one page ‘review’ from a reviewing physician at [a state

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agency]” without explaining how this reviewing physician, Dr. Hurley, is entitled to less weight

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ORDER ON PLAINTIFF’S COMPLAINT - 5

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than the Commissioner’s reviewing physician, Dr. Rubio, to whom the ALJ gave significant

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weight. Dkt. 16, p. 5-6; AR. 31. Because both are non-examining physicians, Dr. Rubio’s

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opinion does not automatically trump Dr. Hurley’s opinion in terms of weight. See Lester, supra,

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81 F.3d at 830 (citations omitted). Defendant attempts to convince this Court that the ALJ would

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have rejected Dr. Hurley’s opinion, however the ALJ is responsible for reconciling contradictory

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evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). Notably,

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this case does not have a treating physician’s opinion and has only one examining physician’s

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opinion, to which the ALJ afforded only partial weight. See AR. 31. Moreover, Dr. Hurley’s

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opinion was issued within months of Dr. Rubio’s opinion. AR. 101, 483. The dearth of medical

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opinions from the later time period makes Dr. Hurley’s opinion even more probative.

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Defendant states that this Court should reject Dr. Hurley’s medical opinion because

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plaintiff has experienced improvement in his condition. Dkt. 16, p. 7. However, stability or

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improvement in a condition is not necessarily inconsistent with a finding of disability. A

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statement of “improvement” is conclusory without showing that the individual’s ability to work

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was restored. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“it is error for an ALJ

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to pick out a few isolated instances of improvement over a period of months or years and to treat

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them as a basis for concluding a claimant is capable of working.”) Here, there is no discussion

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by the ALJ as to what extent plaintiff’s condition improved, nor whether he improved to the

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point that he is able to work. Therefore, the ALJ may wish to revisit this issue upon remand, but

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this Court does not wish to engage in “post hoc rationalizations that attempt to intuit what the

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adjudicator may have been thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1225-26 (9th Cir.

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2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)).

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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This Court notes that defendant concludes her argument by irrelevantly noting plaintiff’s

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history of drug use. Dkt. 16, p. 13. The ALJ did not list substance abuse as one of plaintiff’s

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severe impairments and noted that plaintiff has maintained sobriety since 2013. AR. 24-25. It is

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unclear why defendant concluded her defense with this factor when the ALJ did not raise this

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issue in his decision. As drug use is not a factor in this claim, this Court will not consider it as a

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factor in this Order.

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II. Plaintiff’s remaining arguments.

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Plaintiff also alleges that the ALJ improperly rejected plaintiff’s subjective claims,

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improperly rejected lay testimony, and failed to fully develop the record, which ultimately lead

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to an erroneous step five determination. This Court has determined that the ALJ failed to address

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probative evidence. Thus, the ALJ’s evaluation of the other issues plaintiff raises may change

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after revisiting the overlooked evidence. Accordingly, this Court remands for further

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consideration of plaintiff’s claim.

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CONCLUSION

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

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REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting

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Commissioner for further consideration consistent with this order.

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

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Dated this 13th day of August, 2018.

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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 - 7