Rubatino v. Berryhill, No. 2:2017cv01834 - Document 16 (W.D. Wash. 2018)

Court Description: ORDER REVERSING AND REMANDING DEFENDANTS DECISION TO DENY BENEFITS by Judge David W. Christel. (SH)

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Rubatino v. Berryhill Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 FRANCIS H. RUBATINO JR., 9 Plaintiff, 10 v. 11 12 NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, CASE NO. 2:17-CV-01834-DWC ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) and 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 in his assessment of medical opinion evidence from Dr. Margaret L. Cunningham, Ph.D., and Dr. Holly Petaja, Ph.D. Had the ALJ properly considered these opinions, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ’s error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -1 Dockets.Justia.com 1 to the Deputy Commissioner of Social Security for Operations (“Commissioner”) for further 2 proceedings consistent with this Order. 3 4 FACTUAL AND PROCEDURAL HISTORY On March 6, 2014, Plaintiff filed an application for SSI, and on April 16, 2014, Plaintiff 5 filed an application for DIB. See Dkt. 12, Administrative Record (“AR”) 11. In both applications, 6 Plaintiff alleged disability beginning June 1, 2013. AR 11. The applications were denied upon 7 initial administrative review and on reconsideration. See AR 11. ALJ Larry Kennedy has held two 8 hearings in this matter. On September 3, 2015, the ALJ held the first hearing. AR 73-81. The ALJ 9 continued the hearing for it be held on a later date due to recently submitted evidence he had not 10 yet reviewed. See AR 76-81. On January 21, 2016, the ALJ held and completed the second 11 hearing. AR 33-72. 12 In a decision dated July 5, 2016, the ALJ determined Plaintiff to be not disabled. AR 8-32. 13 The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, making the ALJ’s 14 decision the final decision of the Commissioner. See AR 2-7; 20 C.F.R. § 404.981, § 416.1481. 15 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by failing to provide specific 16 and legitimate reasons, supported by substantial evidence in the record, to reject medical opinion 17 evidence from Dr. Cunningham; Dr. Petaja; Dr. Robert Jacobson, M.D.; and Dr. David B. “Pat” 18 Jarvis, M.D. Dkt. 14, pp. pp. 1-18. As a result of these alleged errors, Plaintiff requests an award of 19 benefits. Id. at 18. 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -2 1 2 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 3 social security benefits if the ALJ’s findings are based on legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 6 DISCUSSION 7 I. 8 Plaintiff argues the ALJ failed to provide specific, legitimate reasons, supported by Whether the ALJ properly considered the medical opinion evidence. 9 substantial evidence in the record, to discount medical opinion evidence from Drs. Cunningham, 10 Petaja, Jacobson, and Jarvis. Dkt. 14, pp. 1-18. 11 An ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 12 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 14 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is contradicted, the 15 opinion can be rejected “for specific and legitimate reasons that are supported by substantial 16 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 17 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish 18 this by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 19 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th 20 Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 21 A. Dr. Cunningham 22 Plaintiff argues the ALJ failed to provide legally sufficient reasons to reject medical 23 opinion evidence from examining physician, Dr. Cunningham. Dkt. 14, pp. 6-9. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -3 1 Dr. Cunningham performed a psychological evaluation of Plaintiff on January 14, 2014. 2 AR 525-36. As part of the evaluation, Dr. Cunningham conducted a clinical interview, mental 3 status examination, anxiety assessment, and Beck Depression Inventory-II evaluation. AR 525-36. 4 Dr. Cunningham diagnosed Plaintiff with several conditions, including major depressive disorder, 5 generalized anxiety disorder, panic disorder with agoraphobia, opioid and cocaine abuse, a history 6 of cancer, and leg and foot pain. AR 527-28. 7 In a Medical Source Statement, Dr. Cunningham opined Plaintiff was moderately limited in 8 his ability to understand, remember, and persist in tasks by following very short and simple 9 instructions. AR 528. Dr. Cunningham further found Plaintiff had marked limitations in his ability 10 to learn new tasks; perform routine tasks without special supervision; adapt to changes in a routine 11 work setting; make simple work-related decisions; and be aware of normal hazards and take 12 appropriate precautions. AR 528. Additionally, Dr. Cunningham determined Plaintiff had marked 13 limitations in his ability to ask simple questions or request assistance; set realistic goals and plan 14 independently; and perform activities within a schedule, maintain regular attendance, and be 15 punctual within customary tolerances without special supervision. AR 528. Lastly, Dr. 16 Cunningham opined Plaintiff was severely limited in four areas: his ability to understand, 17 remember, and persist in tasks by following detailed instructions; communicate and perform 18 effectively in a work setting; maintain appropriate behavior in a work setting; and complete a 19 normal work day and work week without interruptions from psychologically based symptoms. AR 20 528. 21 Regarding Dr. Cunningham’s opinion, the ALJ wrote: 22 Little to no weight is given to the consultative psychological opinion from Margaret L. Cunningham, Ph.D., dated January 2014, that the claimant’s [Global Assessment of Functioning] [“]GAF[”] score is 40 and (1) that he has “marked” to “severe” limitations with maintain[ing] a regular schedule, making simple work-related 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -4 1 2 3 4 5 6 7 decisions, and/or maintaining appropriate behavior in a work setting, because she relied more on the claimant’s subjective symptoms. Dr. Cunningham indicated on page 1 of her report that no medical records were available. Indeed, the majority of the report contains such phrases as “Frank said” or “He said.” Such reliance on the claimant’s statements is problematic for the reasons stated. (2) That Dr. Cunningham assess[ed] the claimant with a “marked” limitation in being able to maintain a regular work schedule for example, directly conflicts with the claimant’s own statements to Dr. Jarvis just 5 months later, i.e., that he rises at 4:00 AM daily, has breakfast, and attends a range of pre-schedule appointments throughout the week, etc. During the hearing held in January 2016, the claimant gave a similar recitation of daily activities . . . (3) As a Ph.D., Dr. Cunningham is also not qualified to assess what impact physical impairments, i.e., history of cancer and/or leg and foot pain, may have on his physical functioning. 8 AR 23-24 (internal citations omitted) (numbering added). 9 While the ALJ provided three reasons for rejecting Dr. Cunningham’s opined “marked” 10 and “severe” limitations, none of these reasons were specific and legitimate or supported by 11 substantial evidence. 1 First, the ALJ discounted Dr. Cunningham’s opinion because he found Dr. 12 Cunningham relied on Plaintiff’s subjective complaints. AR 23-24. An ALJ may reject a 13 physician’s opinion if it is primarily based upon a claimant’s properly discounted self-reports. 14 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing Morgan v. Comm’r Soc. Sec. 15 Admin., 169 F.3d 595, 602 (9th Cir. 1999)). However, the Ninth Circuit has held “the rule allowing 16 an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions 17 regarding mental illness.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). This is because 18 psychiatric evaluations “will always depend in part on the patient’s self-report,” as “unlike a 19 broken arm, a mind cannot be x-rayed.” Id. (internal quotation marks omitted) (quoting Poulin v. 20 Bowen, 817 F.2d 865, 873 (D.C. Cir. 1987)). Accordingly, mental status examinations and clinical 21 interviews “are objective measures and cannot be discounted as a ‘self-report[s].’” Id. 22 23 1 Plaintiff does not challenge the ALJ’s consideration of any of the GAF scores in the record. Dkt. 14, pp. 24 4, 9, 10. As such, the Court does not assess the ALJ’s treatment of the assigned GAF scores. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -5 1 In this case, Dr. Cunningham’s evaluation included a clinical interview, mental status 2 examination, and other psychological evaluations. See AR 525-36. As such, Dr. Cunningham’s 3 opinion cannot be discounted as being based on Plaintiff’s self-reports. Buck, 869 F.3d at 1049. 4 Furthermore, the ALJ failed to explain how the fact that Dr. Cunningham did not review any 5 medical reports impacted her assessment, particularly given that she conducted her own 6 examination. Thus, in all, this was not a specific, legitimate reason for rejecting Dr. Cunningham’s 7 opinion. 8 Second, the ALJ discounted Dr. Cunningham’s opinion that Plaintiff was markedly limited 9 in his ability to maintain a regular work schedule in light of Plaintiff’s reported daily activities. AR 10 24. Generally, an ALJ may reject a physician’s opinion if it is inconsistent with the claimant’s 11 daily activities. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). But in any event, the 12 ALJ’s decision must be supported by substantial evidence in the record. Bayliss, 427 F.3d at 1214 13 n.1. 14 In this case, the ALJ correctly noted that Plaintiff reported to Dr. Jarvis and testified that he 15 wakes up at 4:00 or 5:00 AM, has breakfast, and attends recovery meetings and medical 16 appointments throughout the week. See AR 24, 41-43, 470. But Plaintiff’s ability to perform this 17 limited range of activities does not necessarily show he could “perform an eight-hour workday, 18 five days per week, or an equivalent work schedule.” See Social Security Ruling (“SSR”) 96-8p, 19 1996 WL 374184, at *1. Moreover, the ALJ failed to explain how Plaintiff’s reported ability to 20 conduct these activities shows he could sustain a full-time work schedule. See Mulanax v. Comm’r 21 of Soc. Sec. Admin., 293 Fed. Appx. 522, 523 (9th Cir. 2008) (citing SSR 96-8p) (“Generally, in 22 order to be eligible for disability benefits under the Social Security Act, the person must be unable 23 to sustain full-time work – eight hours per day, five days per week.”). In addition, a disability 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -6 1 claimant “should not be penalized for attempting to lead normal lives in the face of their 2 limitations.” Reddick, 157 F.3d at 722. Therefore, the ALJ’s second reason for rejecting Dr. 3 Cunningham’s opinion was not supported by substantial evidence because Plaintiff’s reported 4 activities are not necessarily inconsistent with Dr. Cunningham’s opinion. 5 Third, the ALJ discounted Dr. Cunningham’s opinion because she holds a Ph.D., and thus, 6 she is “not qualified to assess what impact physical impairments, i.e., history of cancer and/or leg 7 and foot pain, may have on his physical functioning.” AR 24. Dr. Cunningham is a licensed 8 psychologist who possesses a Ph.D., not a medical doctor. See AR 531. Accordingly, the ALJ 9 could discount opinions from Dr. Cunningham regarding Plaintiff’s physical limitations. See 20 10 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the opinion of a specialist about 11 medical issues related to his or her area of specialty than to the opinion of a source who is not a 12 specialist.”). However, this reasoning is not applicable to Dr. Cunningham’s conclusions regarding 13 Plaintiff’s psychological conditions. See Anderson v. Colvin, 223 F. Supp. 3d 1108, 1121-22 (D. 14 Or. 2016) (finding the ALJ erred in discounting a licensed psychologist’s opinion regarding the 15 claimant’s psychological condition). 16 Although Dr. Cunningham mentioned Plaintiff had a “[h]istory of cancer” and “[l]eg and 17 foot pain,” Dr. Cunningham conducted a psychological evaluation and opined to social and 18 cognitive limitations – not physical limitations. See AR 528. Further, the ALJ failed to explain how 19 the fact that Dr. Cunningham mentioned Plaintiff’s physical impairments invalidated her findings 20 about Plaintiff’s psychological conditions and associated limitations. See AR 24. As such, this was 21 not a specific, legitimate reason, supported by substantial evidence, for discounting Dr. 22 Cunningham’s opinion. 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -7 1 For the above stated reasons, the Court concludes the ALJ failed to provide any specific, 2 legitimate reason, supported by substantial evidence, for discounting Dr. Cunningham’s opinion. 3 Hence, the ALJ erred. 4 Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 5 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or 6 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r of Soc. 7 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The 8 determination as to whether an error is harmless requires a “case-specific application of judgment” 9 by the reviewing court, based on an examination of the record made “‘without regard to errors’ that 10 do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. 11 Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)). 12 Here, had the ALJ properly considered Dr. Cunningham’s opinion, the RFC and the 13 hypothetical questions posed to the vocational expert (“VE”) may have included additional 14 limitations. For example, the RFC and hypothetical questions may have reflected Dr. 15 Cunningham’s opinion that Plaintiff had marked limitations in his ability to make simple work16 related decisions, and perform activities within a schedule, maintain regular attendance, and be 17 punctual within customary tolerances without special supervision. Moreover, the RFC and 18 hypothetical questions may have contained Dr. Cunningham’s opinion that Plaintiff was severely 19 limited in his ability to complete a normal work day and work week without interruptions from 20 psychologically based symptoms. The RFC and hypothetical questions posed to the VE did not 21 contain these limitations. See AR 17, 64-70. As the ultimate disability decision may have changed 22 with proper consideration of Dr. Cunningham’s opinion, the ALJ’s error is not harmless and 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -8 1 requires reversal. See Molina, 674 F.3d at 1115. The ALJ is directed to reassess Dr. Cunningham’s 2 opinion on remand. 3 B. Dr. Petaja 4 Next, Plaintiff maintains the ALJ failed to provide any specific and legitimate reason to 5 reject medical opinion evidence from examining physician, Dr. Petaja. Dkt. 14, pp. 9-12. 6 Dr. Petaja conducted a psychological/psychiatric evaluation of Plaintiff in December 2014. 7 AR 537-44. As part of her examination, Dr. Petaja conducted a clinical interview, mental status 8 examination, and Beck Depression Inventory-II evaluation. AR 537-44. Dr. Petaja diagnosed 9 Plaintiff with major depressive disorder, trichotillomania, and heroin dependence. AR 539. 10 Dr. Petaja opined Plaintiff had moderate limitations in several areas of basic work activities, 11 including his ability to understand, remember, and persist in tasks by following detailed 12 instructions; learn new tasks; perform routine tasks without special supervision; adapt to changes 13 in a routine work setting; and make simple work-related decisions. AR 539. In addition, Dr. Petaja 14 found Plaintiff moderately limited in his ability to be aware of normal hazards and take appropriate 15 precautions, ask simple questions or request assistance, and set realistic goals and plan 16 independently. AR 539. Further, Dr. Petaja determined Plaintiff had marked limitations in his 17 ability to: perform activities within a schedule, maintain regular attendance, and be punctual within 18 customary tolerances without special supervision; communicate and perform effectively in a work 19 setting; maintain appropriate behavior in a work setting; and complete a normal workday and work 20 week without interruptions from psychologically based symptoms. AR 539. 21 With respect to Dr. Petaja’s opinion, the ALJ wrote: 22 Little to no weight is also given to the consultative psychological opinion from Holly Petaja, Ph.D., dated December 2014, for similar reasons to that discussed directly above in the opinion assessment for Dr. Cunningham, i.e., (1) she also did not review any medical evidence and (2) instead relied on a one-time examination 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -9 1 2 3 4 5 6 7 (3) and what the claimant told her in rating his GAF at 52. (4) Similarly, Dr. Petaja indicated a marked limitation, for performing activities within a schedule. Yet, this directly conflicts with the claimant's own statements to Dr. Jarvis just 5 months later, i.e., that he rises at 4:00 AM daily, has breakfast, and attends a range of pre-schedule appointments throughout the week, etc. During the hearing held in January 2016, the claimant gave a similar recitation of daily activities. (5) Likewise, the remainder of the marked limitations are not supported. For example, Dr. Petaja opines the claimant has a marked limitation in communication and maintaining appropriate behavior. However, Dr. Petaja indicated on mental status examination normal rate, rhythm and volume of speech. Dr. Jarvis also noted the claimant was polite and cooperative. The claimant makes good eye contact and listens politely as well as attentively. He relates to others in a pleasant, open, friendly but serious and interested manner. The claimant is fully oriented and cooperative. 8 AR 24 (internal citations omitted) (numbering added). 9 The ALJ provided five reasons for discounting Dr. Petaja’s opinion, but none of these were 10 legally sufficient. First, the ALJ gave Dr. Petaja’s opinion little weight because she did not review 11 any medical evidence. AR 24. An ALJ cannot reject a physician’s opinion in a vague or conclusory 12 manner; rather, the ALJ “must set forth his own interpretations and explain why they, rather than 13 the doctors’, are correct.” Embrey, 849 F.2d at 421. Here, the ALJ failed to explain how the fact 14 how the fact that Dr. Petaja did not review any medical evidence impacted her assessment. See AR 15 24. But, Dr. Petaja actually conducted her own examination upon which she could base her 16 assessment. See AR 537-44. Hence, this was not a specific and legitimate reason, supported by 17 substantial evidence, to reject Dr. Petaja’s opinion. See Treichler v. Comm’r of Soc. Sec. Admin., 18 775 F.3d 1090, 1103 (9th Cir. 2014) (citation omitted) (“the ALJ must provide some reasoning in 19 order for us to meaningfully determine whether the ALJ’s conclusions were supported by 20 substantial evidence”). 21 Second, the ALJ discounted Dr. Petaja’s opinion because she based her findings on a “one- 22 time examination.” AR 24. An examining physician, by definition, does not have a treating 23 relationship with the claimant and usually only examines a claimant one time. See 20 C.F.R. § 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 404.1527(c) (effective Aug. 24, 2012 to Mar. 26, 2017). “When considering an examining 2 physician’s opinion . . . it is the quality, not the quantity of the examination that is important. 3 Discrediting an opinion because the examining doctor only saw claimant one time would 4 effectively discredit most, if not all, examining doctor opinions.” Yeakey v. Colvin, 2014 WL 5 3767410, at *6 (W.D. Wash. July 31, 2014). Accordingly, discrediting Dr. Petaja’s opinion simply 6 because she saw Plaintiff once was not a specific and legitimate reason for doing so. See id. 7 The ALJ’s third and fourth reasons for rejecting Dr. Petaja’s opinion are the same legally 8 erroneous reasons the ALJ gave for discounting Dr. Cunningham’s opinion – that is, that the 9 opinion was based on Plaintiff’s self-reports, and contradicted Plaintiff’s daily activities. See AR 10 24. The ALJ cited the same daily activities in discounting Dr. Petaja’s opinion as he did when 11 discounting Dr. Cunningham’s opinion. See AR 24. Yet as previously explained, such reasoning is 12 invalid, as Dr. Petaja conducted a clinical interview and mental status examination, and Plaintiff’s 13 minimal daily activities did not contradict Dr. Petaja’s opinion. As such, the ALJ’s third and fourth 14 reasons for rejecting Dr. Petaja’s opinion were error. 15 Lastly, the ALJ discounted Dr. Petaja’s opinion regarding Plaintiff’s marked limitations 16 because the ALJ found them unsupported by the record. Once again, however, the ALJ rejected Dr. 17 Petaja’s opinion in a conclusory manner, as he “merely state[d] that the objective factors point[ed] 18 toward an adverse conclusion,” but “ma[de] no effort to relate any of these objective factors” to 19 particular findings from Dr. Petaja. See Embrey, 849 F.2d at 422. “This approach is inadequate.” 20 Id. The Court also notes that although the ALJ wrote that he rejected “the remainder of the marked 21 limitations,” he did not address Dr. Petaja’s opinion that Plaintiff had a marked limitation in his 22 ability to complete a normal workday and work week. See AR 24. 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11 1 Furthermore, the ALJ’s fifth reason is also unsupported by substantial evidence in the 2 record. Although the ALJ accurately described some normal findings from Dr. Petaja’s 3 examination, the ALJ omitted several abnormal findings. For instance, Dr. Petaja noted Plaintiff 4 was experiencing “low mood, feelings of worthlessness, recurrent thoughts of death, social 5 withdrawal, sleep disturbance, anhedonia, change in appetite, fatigue, and difficulty 6 concentrating.” AR 538. Dr. Petaja additionally wrote that Plaintiff reported hallucinations. AR 7 538. On the mental status examination, Plaintiff’s mood was “dysthymic” and he had a “restricted” 8 affect. AR 540. Further, Dr. Petaja found Plaintiff outside normal limits on memory, concentration, 9 and insight and judgment in the mental status examination. AR 540-41. Thus, the ALJ’s selective 10 record reliance was not a specific, legitimate reason, supported by substantial evidence, to reject 11 Dr. Petaja’s findings. See Reddick, 157 F.3d at 722-23 (an ALJ must not “cherry-pick” certain 12 observations without considering their context). 13 The ALJ failed to provide any specific and legitimate reason, supported by substantial 14 evidence in the record, to discount Dr. Petaja’s opinion. Therefore, the ALJ erred. The RFC and 15 hypothetical questions posed to the VE may have contained additional limitations with proper 16 consideration of Dr. Petaja’s opinion, such as that Plaintiff was markedly limited in his ability to 17 complete a normal work day and work week without interruptions from psychologically based 18 symptoms. As the ultimate disability decision may have changed, the ALJ’s error is not harmless. 19 See Molina, 674 F.3d at 1115. The ALJ is directed to re-evaluate Dr. Petaja’s opinion on remand. 20 C. Drs. Jacobson and Jarvis 21 Plaintiff alleges the ALJ provided legally insufficient reasons to discount medical opinions 22 from Plaintiff’s treating physician Dr. Jacobson, and examining physician Dr. Jarvis. Dkt. 14, pp. 23 3-6 12-18. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 12 1 The Court has determined remand is inevitable and has directed the ALJ to re-evaluate the 2 opinion evidence from Drs. Cunningham and Petaja on remand. Since reconsideration of Drs. 3 Cunningham and Petaja may impact the ALJ’s assessment of Drs. Jacobson and Jarvis, the Court 4 instructs the ALJ to also re-evaluate the opinion evidence from Drs. Jacobson and Jarvis. 5 Furthermore, the Court notes the ALJ’s consideration of Dr. Jacobson’s opinions contains 6 facially apparent errors. For instance, in assessing Dr. Jacobson’s August 19, 2015 opinion, the 7 ALJ wrote that the attached form assessment was completed by Dr. Jaymes R. Venema, M.D., 8 rather than Dr. Jacobson. See AR 24-25; see also AR 545-554 (Dr. Jacobson’s narrative statement 9 and the attached form). In addition, the ALJ’s assessment also contains legal errors. For example, 10 the ALJ rejected Dr. Jacobson’s November 25, 2014 opinion partly because he found it conflicted 11 with other physicians’ findings. AR 25. In doing so, the ALJ erroneously gave greater weight to 12 the other physicians without explanation as to why they were more persuasive than Dr. Jacobson. 13 See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 14 1462, 1464 (9th Cir. 1996)) (“Where an ALJ does not . . . set forth specific, legitimate reasons for 15 crediting one medical opinion over another, he errs.”). 16 II. 17 Lastly, Plaintiff requests the Court remand this case for an award of benefits. Dkt. 14, p. 18. 18 The Court may remand a case “either for additional evidence and findings or to award Whether this case should be remanded for an award of benefits. 19 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court 20 reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the 21 agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 22 Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 13 1 evidence should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211 2 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where: 3 4 5 (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. 6 Smolen, 80 F.3d at 1292. 7 In this case, the Court has directed the ALJ to re-evaluate medical opinion evidence from 8 Drs. Cunningham, Petaja, Jacobson, and Jarvis. See Section I., supra. Because outstanding issues 9 remain regarding the medical opinion evidence, the RFC, and Plaintiff’s ability to perform jobs 10 existing in significant numbers in the national economy, remand for further consideration of this 11 matter is appropriate. 12 13 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 14 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and this 15 matter is remanded for further administrative proceedings in accordance with the findings 16 contained herein. The Clerk is directed to enter judgment for Plaintiff and close the case. 17 Dated this 8th day of August, 2018. A 18 19 David W. Christel United States Magistrate Judge 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 14

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