Kortright v. Commissioner of Social Security

Filing 18

ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS by Hon. Brian A Tsuchida. (AQ)

Case 3:22-cv-05063-BAT Document 18 Filed 09/15/22 Page 1 of 6

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DANIELLE K.,
CASE NO. C22-5063-BAT

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

ORDER REVERSING AND
REMANDING FOR FURTHER
PROCEEDINGS

Defendant.
Plaintiff appeals the ALJ's decision finding her not disabled. She contends the ALJ

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misevaluated the medical opinion evidence and her testimony, and the ALJ's residual functional

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capacity (“RFC”) determination and step-five findings are thus erroneous. Dkt. 15 at 2. For the

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reasons below, the Court REVERSES the Commissioner’s final decision and REMANDS the

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case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

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BACKGROUND

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After Plaintiff's 2018 benefits application was denied, the ALJ held a hearing in

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September 2020, Tr. 112-46, and subsequently issued a decision finding Plaintiff not disabled.

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Tr. 44-58. As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the

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Commissioner’s final decision. Tr. 1-7.

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ORDER REVERSING AND REMANDING FOR FURTHER
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Case 3:22-cv-05063-BAT Document 18 Filed 09/15/22 Page 2 of 6

DISCUSSION

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A.

Medical Opinion Evidence
Under 20 C.F.R. § 404.1520c(a)-(c), the ALJ must articulate the persuasiveness of each

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medical opinion, and specifically whether the opinions are supported, and consistent with the

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record. An ALJ’s findings must also be supported by substantial evidence. See Woods v.

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Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Plaintiff contends these regulations are invalid

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because they “purport to relieve an ALJ of the duty to fully articulate how he is weighing the

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medical opinion evidence[.]” Dkt. 15 at 6. The Court finds the regulations do not relieve the

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ALJ of making findings that may be judicially reviewed in a meaningful way. Indeed the

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regulations require the ALJ to articulate the basis of a finding with sufficient particularity and

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explicitly address whether medical opinions are supported and consistent with the record, and

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permit ALJs to address other factors as necessary. See 20 C.F.R. § 404.1520c(c). Plaintiff thus

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fails to show the regulations relieve an ALJ from articulating his or her reasoning.

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Plaintiff argues the ALJ misevaluated several medical opinions. She first contends the

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ALJ erred with respect to the opinions of Joshua Johnston, M.D. Dr. Johnston, Plaintiff’s treating

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physician, wrote a letter in August 2019 requesting Plaintiff be assigned a close parking spot at

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school and receive extended time to reach her classes, due to her walking limitations. Tr. 1203.

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The ALJ noted this letter is not constitute a medical opinion because it does not address

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Plaintiff’s work-related functional limitations. Tr. 55-56. The ALJ also found it was inconsistent

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with the evidence of Plaintiff’s improvement after her hip surgery in January 2019 and that a

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sedentary RFC would account for Dr. Johnston’s opinions, in any event. Id.

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Plaintiff argues the ALJ erred in focusing on the evidence of her post-surgery
improvement without acknowledging Dr. Johnston also indicated Plaintiff would never be

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Case 3:22-cv-05063-BAT Document 18 Filed 09/15/22 Page 3 of 6

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completely pain-free. Dkt. 15 at 7 (citing Tr. 1023). But the ALJ did not suggest Plaintiff

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improved to the point that she was completely pain-free. Instead the ALJ’s noted evidence

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showing Plaintiff’s functionality improved in the months after surgery, citing many normal

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physical examinations, also acknowledging Plaintiff continued to report some degree of pain

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persisting even after surgery. See Tr. 52. Further, Plaintiff does not dispute Dr. Johnston does not

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describe any workplace functional limitations, and thus the ALJ properly found that it does not

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constitute a medical opinion under the applicable regulations. See 20 C.F.R. § 404.1513(a)(2).

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Plaintiff next contends the ALJ erred in assessing the opinions of Philip Gibson, Ph.D.

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Dr. Gibson examined Plaintiff in March 2019 and opined Plaintiff would have difficulty with

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certain workplace functions. Tr. 1039-42. The ALJ found Dr. Gibson’s opinion to be “only

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somewhat persuasive” because it did not identify specific work limitations and was inconsistent

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with the doctor's normal mental status examination (MSE) findings and was also inconsistent

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with Plaintiff’s mental health treatment notes and activities. Tr. 55. The ALJ found Dr. Gibson’s

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opinion was consistent with Plaintiff’s self-reported anxiety symptoms. Id.

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The ALJ's finding Dr. Gibson is vague and failed to identify work limitations is not

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supported by substantial evidence. Dr. Gibson opined Plaintiff would have difficulty (1)

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accepting instructions from supervisors; (2) performing work activates without special or

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additional instructions; (3) minting regular attendance and completing a normal workday and

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workweek; and (4) dealing with the usual stress in the workplace. Tr. 1042. To the extent these

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limitations were unclear to the ALJ, the ALJ should have developed the record rather than

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simply reject the opinions outright.

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The ALJ's finding Dr. Gibson's opinion is inconsistent with his MSE findings and intact
psychiatric functioning, historically, is also not supported by the record. Dr. Gibson did not opine

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Plaintiff's limitations are caused by lack of intelligence, cognitive functioning or judgment which

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appear to be within normal bounds per the MSE. Rather the doctor opined Plaintiff ,who he

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diagnosed with posttraumatic stress disorder and major depressive disorder, has functional

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limitations related to hypervigilance and inability to tolerate stress. Id. The ALJ accordingly

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erred in discounting the doctor's opinions.

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Plaintiff next contends the ALJ erred in discounting the opinion of Kimberly Newell,

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ARNP. In 2019, Ms. Newell, Plaintiff’s treating provider opined Plaintiff’s impairments

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“impact[] her ability to walk far distances, carry heavy objects, sit in hard and unsupportive

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chairs.” Tr. 1202. The ALJ found the opinion was vague because it fails to identify any

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particular functional limitations. Tr. 55. The ALJ found the letter to be consistent with Plaintiff’s

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history of hip issues, but inconsistent with her improvement after surgery in January 2019. Id.

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The ALJ stated the RFC determination accommodates Ms. Newell’s opinion because it limits

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Plaintiff to less than the full range of sedentary work. Id.

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Plaintiff concedes Ms. Newell’s opinion is “indeed somewhat vague,” but argues the

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opinion is nonetheless supported by clinical findings contained in the treatment notes. Dkt. 15 at

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10. Plaintiff also argues, without explanation, the ALJ’s RFC assessment “does not fully

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accommodate the findings and opinion of Ms. Newell.” Dkt. 15 at 10. Failing to identify any

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inconsistency is fatal to Plaintiff’s argument because Plaintiff bears the burden to show that an

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ALJ’s error is harmful. The ALJ’s RFC assessment contains significant limitations as to

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Plaintiff’s sitting, walking, and lifting abilities, and Plaintiff has failed to show that these

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restrictions do not fully account for the vague limitations listed in Ms. Newell’s letter.

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Accordingly, Plaintiff has failed to show the ALJ harmfully erred in assessing Ms. Newell’s

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letter.

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Plaintiff also argues the ALJ erred in finding the State agency medical consultants’

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opinions were persuasive because she also partially rejected them, finding Plaintiff to be more

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limited. Dkt. 15 at 12. Plaintiff fails to identify any harm flowing from the ALJ’s inclusion of

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additional limitations and thus fails to meet her burden to establish harmful error.

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Plaintiff further argues the ALJ erred in finding the State agency psychological

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consultants’ opinions to be persuasive, because the ALJ should have found them to be

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inconsistent with Dr. Gibson’s opinion. Tr. 55. Plaintiff disregards the fact the ALJ found

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Plaintiff to be more limited than the State agency psychological consultants (id.), which, again,

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undercuts any argument the ALJ harmfully erred.

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The Court notes many pages of Plaintiff's opening brief is a summary of miscellaneous
medical findings that does not establish the ALJ harmfully erred. Dkt. 15 at 10-12.

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The Court also notes Plaintiff submitted evidence to the Appeals Council (Tr. 8-19, 30-

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39, 65-111), and argues the Appeals Council evidence “provides further support” for her

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testimony and for the opinions of Drs. Johnston, Gibson, and Ms. Newell. Dkt. 15 at 14. The

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Court has already found the ALJ erred as to Dr. Gibson and finds the new evidence does not

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undermine the ALJ's assessment of Drs. Johnston or Ms. Newell.

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B.

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Plaintiff’s Testimony
The ALJ discounted Plaintiff's testimony on the grounds (1) Plaintiff’s hip symptoms

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improved after surgery, (2) Plaintiff’s objective findings and activities are inconsistent with her

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alleged physical and mental limitations, and (3) Plaintiff refused to take antidepression

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medication. Tr. 51-54. Absent evidence of malingering, an ALJ must provide clear and

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convincing reasons to discount a claimant’s testimony. See Burrell v. Colvin, 775 F.3d 1133,

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1136-37 (9th Cir. 2014).

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Plaintiff argues the ALJ erred in relying on a lack of corroboration from objective

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evidence to discount her testimony. Dkt. 15 at 15. But the ALJ did not solely rely on the lack of

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objective and instead provided other reasons. Thus the ALJ cannot be deemed to have harmfully

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erred. Next, Plaintiff contends the record shows she has impairments that can reasonably be

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expected to cause her symptoms and limitations. Dkt. 15 at 15-18. But the ALJ agreed and

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explicitly found Plaintiff’s “medically determinable impairments could reasonably be expected

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to cause [her] alleged symptoms[.]” Tr. 51. The ALJ further found the limiting effects of

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Plaintiff's symptoms were not entirely consistent with the record. Thus the Court cannot say the

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ALJ was unreasonable in discounting Plaintiff's claimed physical limitations; however as noted

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above, the ALJ erred in discounting Dr. Gibson's opinions about Plaintiff's mental limitations.

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The Court thus will not disturb the ALJ's findings as to Plaintiff's physical limitations but directs

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that on remand the ALJ reassess Plaintiff's claims about her mental limitations.

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CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is REVERSED, and the

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case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. §

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405(g). On remand the ALJ shall reevaluate the opinions of Dr. Gibson and Plaintiff's testimony

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regarding her mental limitations, develop the record and redetermine RFC as needed, and

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proceed to the remaining steps of the five step disability determination process.

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DATED this 15th day of September, 2022.

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A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER REVERSING AND REMANDING FOR FURTHER
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