Oyler v Berryhill

Filing 13


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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 TRACY EDWIN OYLER, 11 Plaintiff, v. 12 13 14 NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, 16 18 19 20 21 22 23 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS Defendant. 15 17 CASE NO. 3:17-CV-05784-DWC Plaintiff Tracy Edwin Oyler filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant’s denial of Plaintiff’s application for disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 5. After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred by failing to adequately address medical opinion evidence from Dr. Patricia Sylwester, M.D. Had the ALJ properly considered Dr. Sylwester’s opinion, the residual functional capacity 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -1 1 (“RFC”) may have included additional limitations. The ALJ’s error is therefore not harmless, 2 and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the 3 Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent 4 with this Order. 5 FACTUAL AND PROCEDURAL HISTORY 6 On August 4, 2014, Plaintiff filed an application for DIB, alleging disability as of 7 September 9, 2013. See Dkt. 8, Administrative Record (“AR”) 25. The application was denied 8 upon initial administrative review and on reconsideration. See AR 25. ALJ David Johnson held a 9 hearing on May 10, 2016. AR 42-90. In a decision dated June 10, 2016, the ALJ determined 10 Plaintiff to be not disabled. AR 22-41. The Appeals Council denied Plaintiff’s request for review 11 of the ALJ’s decision, making the ALJ’s decision the final decision of the Commissioner. See 12 AR 1-6; 20 C.F.R. § 404.981, § 416.1481. 13 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to properly 14 consider medical opinion evidence from Dr. Sylwester; and (2) failing to respond to Plaintiff’s 15 post-hearing objections. See Dkt. 10. As a result of these errors, Plaintiff requests the Court 16 remand his claim for further administrative proceedings. Id. at 17. 17 18 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 19 social security benefits if the ALJ’s findings are based on legal error or not supported by 20 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 21 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -2 1 DISCUSSION 2 I. 3 Plaintiff asserts the ALJ erred by failing to give adequate reasons to reject medical Whether the ALJ properly considered the medical opinion evidence. 4 opinion evidence from examining physician Dr. Sylwester. Dkt. 10, pp. 10-17. 5 On March 27, 2016, Dr. Sylwester conducted a physical examination of Plaintiff. See AR 6 596-600. Dr. Sylwester’s examination included a record review, a discussion with Plaintiff 7 regarding his complaints and medical history, and a physical examination. See AR 595-600. 8 Based on her physical examination, Dr. Sylwester noted Plaintiff could “change position with 9 difficulty.” AR 598. Dr. Sylwester further determined Plaintiff had an unsteady, wide-based gait 10 in the absence of his brace and cane. AR 598. Similarly, Dr. Sylwester found Plaintiff “very 11 unbalanced,” with an unsteady walk, unable to perform a toe walk, unsteady on a heel walk, and 12 unable to stand or hop on either leg independently. AR 598. Dr. Sylwester diagnosed Plaintiff 13 with right knee arthritis, and noted he was “tender to palpation over the medial joint line of his 14 right knee.” AR 599. 15 Regarding Plaintiff’s heart conditions, Dr. Sylwester noted Plaintiff had existing 16 diagnoses of atrial fibrillation, congestive heart failure, and dilated cardiomyopathy. AR 596-97, 17 599. Dr. Sylwester’s examination revealed Plaintiff’s heart had irregular rhythm with normal 18 ventricular response, and Plaintiff displayed “shortness of breath with minimal exertion.” AR 19 599. In all, Dr. Sylwester wrote she did not expect any of Plaintiff’s conditions – his right knee 20 arthritis, heart conditions, or unsteady gait – to improve over time. AR 599. 21 After her examination, Dr. Sylwester provided a functional assessment of Plaintiff’s 22 abilities. See AR 599-600. She opined Plaintiff had a maximum ability to stand or walk with 23 normal breaks for less than two hours due to his arthritis, heart condition, and unsteady gait. AR 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -3 1 599. Furthermore, she determined that although Plaintiff was not limited in his ability to sit with 2 normal breaks, he “may need to change positions as needed.” AR 600. Dr. Sylwester opined it 3 was “medically necessary” for Plaintiff to use his right knee brace and cane “for all distances and 4 all terrain.” AR 600. She also wrote Plaintiff had a maximum lifting and carrying capacity of less 5 than ten pounds occasionally and frequently in light of his heart condition and unsteady gait. AR 6 600. In addition, she opined Plaintiff “should never climb, balance, stoop, kneel, crouch or crawl 7 due to his heart condition, arthritis, and unsteady gait.” AR 600. Dr. Sylwester determined 8 Plaintiff was not limited in his ability to reach, handle, feel, or finger. AR 600. Lastly, she opined 9 Plaintiff “should not work at heights or around heavy machinery due to his heart condition and 10 unsteady gait,” and “he should not work around extremes of temperature” due to his heart 11 condition. AR 600. 12 The ALJ summarized Dr. Sylwester’s examination and findings and gave her opinion 13 little weight, explaining: 14 15 16 17 (1) [T]hese restrictions are not consistent with the lack of treatment the claimant sought regarding his musculoskeletal issues. (2) It is notable that Dr. Sylwester based her opinion on the claimant’s reports of dizziness and falling; however, the claimant did not report these issues to his treating doctors at Madigan other than when experiencing the acute effects of alcohol withdrawal. (3) The claimant had normal neurological findings and did not seek treatment for these symptoms which indicates they were not present to the degree he has asserted. 18 AR 35 (internal citations omitted; numbering added). 19 The ALJ gave three reasons for rejecting Dr. Sylwester’s opinion, but none of these 20 reasons was specific and legitimate, or supported by substantial evidence in the record. The 21 ALJ’s first and third reasons for rejecting Dr. Sylwester’s opinion referenced Plaintiff’s lack of 22 treatment for musculoskeletal and neurological issues. See AR 35. An ALJ may reject a 23 physician’s opinion that is “unsupported by the record as a whole.” Batson v. Comm’r of Soc. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -4 1 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citation omitted). Nevertheless, an ALJ cannot 2 use a conclusory statement to reject a doctor’s findings; rather, the ALJ must state his 3 interpretations and explain why they, rather than the doctors’ interpretations, are correct. See 4 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 5 Here, the ALJ suggested Dr. Sylwester’s findings were inconsistent with Plaintiff’s 6 failure to seek treatment for his musculoskeletal and neurological conditions. AR 35. However, 7 the ALJ failed to explain why or how Plaintiff’s lack of treatment contradicted Dr. Sylwester’s 8 opinion. See AR 35 This error is particularly relevant given Dr. Sylwester conducted her own 9 physical examination of Plaintiff. See AR 598-99. Thus, because the ALJ failed to explain why 10 or how the lack of treatment undermines Dr. Sylwester’s opinion, this was not a not specific, 11 legitimate reason, supported by substantial evidence, to reject Dr. Sylwester’s opinion. See 12 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“the agency [must] set forth the 13 reasoning behind its decisions in a way that allows for meaningful review”); see also Garcia v. 14 Colvin, 2015 WL 1221265, at *4 (W.D. Wash. Mar. 17, 2015) (ALJ erred by failing to state how 15 Plaintiff’s failure to see his primary care physician discounted the physician’s findings). 16 Second, the ALJ discounted Dr. Sylwester’s opinion because he found Dr. Sylwester 17 “based her opinion on [Plaintiff’s] reports of dizziness and falling,” and Plaintiff did not report 18 these issues to his treating doctors except when experiencing alcohol withdrawal. AR 35. 19 Generally, an ALJ may reject a physician’s opinion “if it is based to a large extent on a 20 claimant’s self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 21 533 F.3d 1035, 1041 (9th Cir. 2008) (citations and internal quotation marks omitted). In this 22 case, however, Dr. Sylwester’s opinion was not largely based on Plaintiff’s self-reports; instead, 23 Dr. Sylwester conducted her own examination – including an examination of Plaintiff’s station 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -5 1 and gait – and expressly based her functional findings on the relevant diagnoses. See AR 5982 600. 3 In addition, the ALJ’s statement that Plaintiff did not report his dizziness and falling to 4 his treating physicians except when experiencing alcohol withdrawal is not supported by the 5 record. As Plaintiff accurately points out, he reported falls related to hypertension and episodes 6 of syncope 1 to his treating physicians. Dkt. 10, p. 15 (citing AR 335, 360, 377). Hence, the 7 ALJ’s second reason for discounting Dr. Sylwester’s opinion was not specific and legitimate 8 because it was inaccurate and not supported by substantial evidence in the record. 2 9 Third, the ALJ gave Dr. Sylwester’s opinion little weight because he found Plaintiff “had 10 normal neurological findings.” AR 35. Once again, the ALJ provided a conclusory statement to 11 reject Dr. Sylwester’s opinion, as he failed to explain what about Dr. Sylwester’s opinion 12 contradicted Plaintiff’s neurological findings. See AR 35. The ALJ also did not explain which 13 “normal neurological findings” he was referring to, nor did he provide record citations to support 14 this statement. See AR 35. Accordingly, the ALJ’s conclusory reasoning was not a specific, 15 legitimate reason, supported by substantial evidence in the record, to discount Dr. Sylwester’s 16 opinion. See Embrey, 849 F.2d at 422 (an ALJ cannot merely state facts she claims “point toward 17 an adverse conclusion and make[] no effort to relate any of these objective factors to any of the 18 specific medical opinions and findings she rejects”); see also Blakes v. Barnhart, 331 F.3d 565, 19 569 (7th Cir. 2003) (the ALJ must “build an accurate and logical bridge from the evidence to her 20 1 An episode of syncope is “a temporary loss of consciousness, generally due to an insufficient flow of 21 blood to the brain.” Love v. Rancocsas Hosp., 374 F.Supp.2d 425, 426 (D. N.J. June 27, 2005). 22 23 24 2 Plaintiff argues the ALJ erred by not performing the “drug addiction and alcoholism” (“DAA”) analysis, which he claims applies “when the claimant has concomitant impairments and substance abuse.” Dkt. 10, pp. 15-16 (citing Social Security Ruling (“SSR”) 13-2p, 2013 WL 621536 (Feb. 20, 2013)). However, this analysis only applies if the ALJ finds the claimant disabled. See SSR 13-2, 2013 WL 621536, at *5-6; see also 20 C.F.R. § 416,935(a). Therefore, because the ALJ did not find Plaintiff disabled in this case, Plaintiff has not shown the ALJ erred by failing to apply the DAA analysis. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -6 1 conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate 2 findings”). 3 For the above stated reasons, the Court finds the ALJ has not provided specific and 4 legitimate reasons, supported by substantial evidence, to reject Dr. Sylwester’s opinion. As such, 5 the ALJ erred. 6 “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 7 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the 8 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 9 Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 10 1115. The determination as to whether an error is harmless requires a “case-specific application 11 of judgment” by the reviewing court, based on an examination of the record made “‘without 12 regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 111813 1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). 14 Had the ALJ properly considered all of Dr. Sylwester’s opined limitations, the RFC and 15 hypothetical questions posed to the vocational expert (“VE”) may have included additional 16 limitations. For example, the RFC and hypothetical questions may have included that Plaintiff 17 had a maximum ability to stand or walk for less than two hours. The RFC and hypothetical 18 questions may have also provided Plaintiff could never balance, stoop, kneel, crouch, or crawl, 19 and that Plaintiff had a maximum lifting and carrying capacity of less than ten pounds. The RFC 20 and hypothetical questions posed to the VE did not contain these limitations. See AR 30, 69, 7121 74. Because the ultimate disability determination may have changed if all of Dr. Sylwester’s 22 findings were included in the RFC and hypothetical questions, the ALJ’s error was not harmless 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -7 1 and requires reversal. See Molina, 674 F.3d at 1117 (an error is not harmless if it “alters the 2 outcome of the case”). 3 On remand, if the ALJ intends to discount Dr. Sylwester’s opinion, he is directed to 4 provide specific, non-conclusory reasons for doing so. 5 Furthermore, Plaintiff asserts the ALJ erred by assigning “significant weight” to the 6 opinions of the non-examining physicians. Dkt. 10, pp. 16-17; See AR 33-34. Given that proper 7 consideration of Dr. Sylwester’s opinion may impact the ALJ’s treatment of the non-examining 8 physicians, he is directed to reassess the opinions of the non-examining physicians as necessary 9 on remand, as well. 10 II. 11 Plaintiff maintains the ALJ committed harmful error by failing to address Plaintiff’s post- Whether the ALJ adequately addressed Plaintiff’s post-hearing objections. 12 hearing objections to the VE testimony. Dkt. 10, pp. 1-9. Specifically, Plaintiff argues that 13 pursuant to multiple authorities – including statutes, SSRS, case law, and the Hearings, Appeals, 14 and Litigation Law Manual (“HALLEX”) – the ALJ was obligated to rule on Plaintiff’s post15 hearing objections before relying on the VE’s testimony and the Dictionary of Occupational 16 Titles (“DOT”) at Step Five. Id. Defendant asserts the ALJ was not obligated to respond to 17 Plaintiff’s post-hearing objections, and even if he was, he fulfilled this duty. Dkt. 11, pp. 2-8. 18 The Court has determined the ALJ committed harmful error in his treatment of Dr. 19 Sylwester’s medical opinion. See Section I, supra. Because the ALJ’s subsequent findings on 20 remand may impact Plaintiff’s objections to the VE testimony, the Court declines to consider 21 whether the ALJ erred on this issue. 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -8 1 2 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 3 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 4 this matter is remanded for further administrative proceedings in accordance with the findings 5 contained herein. 6 Dated this 16th day of April, 2018. A 7 8 David W. Christel United States Magistrate Judge 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 -9

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