Shaw v. Berryhill, No. 3:2017cv05779 - Document 20 (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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Shaw v. Berryhill Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 MICHAEL ALAN SHAW, Plaintiff, 11 12 13 14 15 16 17 18 19 20 21 22 23 v. NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, CASE NO. 3:17-CV-05779-DWC ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS Defendant. Plaintiff Michael Allen Shaw 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. 2. After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in her consideration of the medical opinion evidence. Had the ALJ properly considered this evidence, the residual functional capacity (“RFC”) may have included additional limitations. The 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -1 Dockets.Justia.com 1 ALJ’s error is therefore not harmless, and this matter is reversed and remanded pursuant to 2 sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security 3 (“Commissioner”) for a de novo hearing consistent with this Order 4 5 FACTUAL AND PROCEDURAL HISTORY On November 22, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as 6 of September 1, 2009. See Dkt. 8, Administrative Record (“AR”) 15. The applications were 7 denied upon initial administrative review and on reconsideration. See AR 15. ALJ Cynthia D. 8 Rosa held a hearing on January 6, 2016. AR 39-77. In a decision dated April 29, 2016, the ALJ 9 determined Plaintiff to be not disabled. AR 15-32. The Appeals Council denied Plaintiff’s 10 request for review of the ALJ’s decision, making the ALJ’s decision the final decision of the 11 Commissioner. See AR 1-6; 20 C.F.R. § 404.981, § 416.1481. 12 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred in her: (1) consideration of 13 medical opinion evidence from examining physicians Drs. Steven Gist, M.D., and Peter Pfeiffer, 14 M.D., and non-examining physicians, Drs. Matthew Comrie, Psy.D., Thomas Clifford, Ph.D., 15 and Guillermo Rubio, M.D.; (2) assessment of lay witness testimony and Plaintiff’s subjective 16 symptom testimony; and (3) decision to limit cross-examination of the vocational expert (“VE”). 17 Dkt. 15, pp. 3-13. Plaintiff requests this matter be remanded for a new hearing and decision by 18 the ALJ. Id. at 13. 19 20 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 21 social security benefits if the ALJ’s findings are based on legal error or not supported by 22 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 23 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -2 1 DISCUSSION 2 I. 3 Plaintiff maintains the ALJ failed to properly consider medical opinion evidence from Whether the ALJ properly considered the medical opinion evidence. 4 Drs. Gist, Pfeiffer, Comrie, Clifford, and Rubio. Dkt. 15, pp. 3-7. 5 The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 6 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 7 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 8 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is contradicted, the 9 opinion can be rejected “for specific and legitimate reasons that are supported by substantial 10 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 11 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can 12 accomplish this by “setting out a detailed and thorough summary of the facts and conflicting 13 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 14 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 15 16 A. Dr. Gist Plaintiff first argues the ALJ erred by giving “significant weight” to Dr. Gist’s opinion 17 yet failing to account for all parts of Dr. Gist’s opinion. Dkt. 15, pp. 3-4. 18 Dr. Gist conducted a physical evaluation of Plaintiff on January 25, 2014. AR 467-71. As 19 part of his evaluation, Dr. Gist reviewed medical records, x-ray reports, and discussed Plaintiff’s 20 medical history with him. AR 467-68. Dr. Gist also conducted a physical examination of 21 Plaintiff. AR 468-70. After his examination, Dr. Gist diagnosed Plaintiff with “[s]evere lower 22 back pain” and noted Plaintiff has “significant degenerative arthritis” in his lumbar spine and 23 sacroiliac joints. AR 470. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -3 1 At the end of his evaluation, Dr. Gist provided a functional assessment regarding 2 Plaintiff’s abilities. AR 470-71. In relevant part, Dr. Gist opined Plaintiff’s “[m]aximum ability 3 to stand or walk is limited to at least two hours based on x-ray findings of degenerative arthritis 4 and stated pain.” AR 470 (emphasis added). Likewise, Dr. Gist opined Plaintiff’s “[m]aximum 5 ability to sit is limited to at least four hours based on degenerative joint disease and stated pain 6 related to sitting for extended periods of time.” AR 470 (emphasis added). Further, Dr. Gist 7 wrote Plaintiff had a maximum lifting and carrying capacity of “20 pounds occasionally and 10 8 pounds frequently.” AR 471. Dr. Gist moreover determined Plaintiff’s ability to climb, balance, 9 stoop, kneel, crouch, and crawl were limited to occasional occurrences. AR 471. Lastly, Dr. Gist 10 opined Plaintiff had a limited ability to work at heights. AR 471. 11 In her decision, the ALJ discussed Dr. Gist’s opinion and gave it “significant weight.” 12 AR 28. In relevant part, the ALJ wrote: “[Dr. Gist] opined that the claimant could stand/walk for 13 at least two hours and sit for at least four hours in an eight-hour workday.” AR 28 (emphasis 14 added) (citation omitted). The ALJ did not address the part of Dr. Gist’s opinion that stated 15 Plaintiff had a “maximum ability” to stand or walk and sit for the allotted time periods. See AR 16 28. The ALJ also did not include such limitations in the RFC, although the RFC did provide 17 Plaintiff “is able to perform work that allows him to alternate between sitting and standing in 30 18 minute periods, if necessary.” See AR 22. Hence, Plaintiff argues the ALJ erred by giving 19 “significant weight” to Dr. Gist’s opinion yet failing to account for the language in Dr. Gist’s 20 opinion about Plaintiff’s “maximum ability” to stand or walk and sit. Dkt. 15, pp. 3-4. 21 “Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow for 22 proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate inquiry.” 23 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing Smolen v. Chater, 80 F.3d 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -4 1 1273, 1288 (9th Cir. 1996) (quotation marks omitted). Although plaintiff bears the burden of 2 proving disability, the ALJ has an affirmative duty to assist the claimant in developing the record 3 “when there is ambiguous evidence or when the record is inadequate to allow for proper 4 evaluation of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) 5 (citation omitted). 6 In this case, Dr. Gist’s opinion regarding Plaintiff’s abilities to stand, walk, and sit is 7 ambiguous evidence. By writing that Plaintiff had the “[m]aximum ability to stand or walk” for 8 “at least two hours,” and the “[m]aximum ability to sit” for “at least four hours,” it is unclear 9 whether Dr. Gist intended to opine Plaintiff could stand or walk, and sit, for up to – or more than 10 – the allotted time periods. See AR 470. The ALJ did not address this ambiguity in Dr. Gist’s 11 opinion. See AR 28. Therefore, the ALJ erred by failing to satisfy her duty to conduct an 12 appropriate inquiry into the ambiguous evidence. 13 Defendant maintains the ALJ “accounted for Dr. Gist’s opinion [in the RFC] by finding 14 that Plaintiff could sit for most of a workday and alternate between sitting and standing at 3015 minute intervals.” Dkt. 16, p. 5. An ALJ “need not discuss all evidence presented.” Vincent ex 16 rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). But an ALJ “may not reject 17 ‘significant probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 18 (9th Cir. 1995) (quoting Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state 19 reasons for disregarding [such] evidence.” Id. at 571. 20 Here, because the ALJ did not mention Dr. Gist’s opinion regarding Plaintiff’s 21 “maximum” ability to stand, walk, and sit, it is unclear whether the ALJ intended to discount this 22 part of the opinion or – as Defendant suggests – “account” for it. Accordingly, the ALJ erred by 23 failing to adequately explain her consideration of all parts of Dr. Gist’s opinion. See Flores, 49 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -5 1 F.3d at 571 (an ALJ’s written decision must state reasons for disregarding significant probative 2 evidence); see also Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (the ALJ must 3 “set forth the reasoning behind [her] decisions in a way that allows for meaningful review”). 4 In sum, the ALJ failed to satisfy her duty to develop the record as to the ambiguous 5 evidence in Dr. Gist’s opinion, and further failed to explain her treatment of all parts of Dr. 6 Gist’s opinion. Therefore, the ALJ erred. 7 Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 8 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or 9 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r of Soc. 10 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The 11 determination as to whether an error is harmless requires a “case-specific application of 12 judgment” by the reviewing court, based on an examination of the record made “‘without regard 13 to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 14 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)). 15 In this case, had properly considered Dr. Gist’s opinion, the RFC and hypothetical 16 questions posed to the VE may have contained the limitation that Plaintiff had the maximum 17 ability to stand or walk for two hours, and sit for four hours. The RFC and hypothetical questions 18 did not contain these limitations. See AR 22, 70, 71. In addition, the RFC and hypothetical 19 questions limited Plaintiff to performing “light work,” which typically requires a person to stand 20 or walk “off and on, for a total of approximately 6 hours of an 8-hour workday.” See AR 22, 70, 21 71; Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *6. Thus, had the ALJ properly 22 considered this part of Dr. Gist’s opinion, she may not have found Plaintiff could perform light 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -6 1 work. As the ultimate disability determination may have changed, the ALJ’s error is not harmless 2 and requires reversal. 3 B. Dr. Pfeiffer 4 Next, Plaintiff maintains the ALJ failed to provide any specific and legitimate reason, 5 supported by substantial evidence, to reject medical opinion evidence from Dr. Pfeiffer. Dkt. 15, 6 pp. 4-7. 7 Dr. Pfeiffer examined Plaintiff in October 2013. See AR 458-65. The examination 8 included a physical examination of Plaintiff and x-ray review of Plaintiff’s lumbar spine. AR 9 459-60, 462, 465. Dr. Pfeiffer diagnosed Plaintiff with degenerative disc disease and bilateral 10 sclerosis of the sacroiliac (“SI”) joints. AR 462, 465. Dr. Pfeiffer opined that, as a result of these 11 diagnoses, Plaintiff had marked limitations in the basic work activities of standing, walking, 12 lifting, carrying, and stooping. AR 462. In addition, Dr. Pfeiffer determined Plaintiff was capable 13 of performing sedentary work. AR 463. 14 In assessing Dr. Pfeiffer’s opinion, the ALJ summarized the doctor’s findings and then 15 wrote: 16 17 18 19 20 Dr. Pfeiffer had an opportunity to examine the claimant in forming an opinion. (1) However, his opinion was inconsistent with the overall medical evidence of record discussed above and (2) appeared to rely solely on the claimant’s subjective complaints. (3) Notably, the medical evidence shows that he received no treatment for his condition for several years. (4) The medical evidence also shows that imaging studies of the lumbar spine revealed mild findings. (5) Additionally, the evidence shows that the claimant subsequently performed medium level work for several months in 2014, which directly undermines the doctor’s opinion. The undersigned gives Dr. Pfeiffer’s opinion little weight. 21 AR 27-28. 22 Although the ALJ provided five reasons to give Dr. Pfeiffer’s medical opinion little 23 weight, each of these reasons was legally insufficient. First, the ALJ rejected Dr. Pfeiffer’s 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -7 1 medical opinion because it was inconsistent with the medical evidence of record “discussed 2 above.” AR 28. An ALJ need not accept an opinion which is inadequately supported “by the 3 record as a whole.” See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 4 2004). Nevertheless, an ALJ may not reject a medical opinion in a vague or conclusory manner. 5 As the Ninth Circuit has stated: 6 7 8 To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. [She] must set forth his own interpretations and explain why they, rather than the doctors’, are correct. 9 Embrey, 849 F.2d at 421. 10 In this case, the ALJ merely stated the medical evidence was inconsistent with Dr. 11 Pfeiffer’s opinion but made no effort to explain how the evidence contradicted Dr. Pfeiffer’s 12 opinion. See AR 28. “This approach is inadequate.” See Embrey, 849 F.2d at 422. The ALJ also 13 failed to identify which part of the medical evidence “discussed above” contradicted Dr. 14 Pfeiffer’s opinion. See AR 28. Thus, the ALJ’s conclusory statement is not a specific and 15 legitimate reason to discount Dr. Pfeiffer’s opinion. See Garrison v. Colvin, 759 F.3d 995, 16 1012-13 (9th Cir. 2014) (“an ALJ errs when [she] rejects a medical opinion or assigns it little 17 weight while doing nothing more than . . . criticizing it with boilerplate language that fails to 18 offer a substantive basis for his conclusion”). 19 Second, the ALJ discounted Dr. Pfeiffer’s opinion because it “appeared to rely solely on 20 the claimant’s subjective complaints.” AR 28. An ALJ may reject a physician’s opinion “if it is 21 based to a large extent on a claimant’s self-reports that have been properly discounted as 22 incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citation and internal 23 quotation marks omitted). Further, an ALJ may reject a physician’s opinion that is “inadequately 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -8 1 supported by clinical findings.” Bayliss, 427 F.3d at 1216 (citing Tonapetyan, 242 F.3d at 1149). 2 Yet here, the ALJ used vague, conclusory language to discount Dr. Pfeiffer’s opinion, as she 3 failed to explain why or how the opinion appeared to rely on Plaintiff’s subjective complaints. 4 Furthermore, the ALJ’s assertion is unsupported by the record, as Dr. Pfeiffer’s report reveals he 5 conducted his own physical examination of Plaintiff and reviewed x-rays of Plaintiff’s lumbar 6 spine. See AR 459-60, 462, 465. Hence, this reason from the ALJ does not reach the level of 7 specificity necessary to justify rejecting Dr. Pfeiffer’s opinion. 8 Third, the ALJ rejected Dr. Pfeiffer’s findings in light of the fact that Plaintiff “received 9 no treatment for his condition for several years.” AR 28. However, the ALJ failed to explain why 10 or how Plaintiff’s lack of treatment undermined Dr. Pfeiffer’s opinion. See AR 28 This error is 11 particularly relevant given Dr. Pfeiffer conducted his own physical examination of Plaintiff. See 12 AR 459-60. As such, this was not a not specific, legitimate reason, supported by substantial 13 evidence, to reject this opinion. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 14 1103 (9th Cir. 2014) (citation omitted) (“the ALJ must provide some reasoning in order for us to 15 meaningfully determine whether the ALJ’s conclusions were supported by substantial 16 evidence”); see also Garcia v. Colvin, 2015 WL 1221265, at *4 (W.D. Wash. Mar. 17, 2015) 17 (ALJ erred by failing to explain how Plaintiff’s failure to see his primary care physician 18 discounted the physician’s findings). 19 Fourth, the ALJ discounted Dr. Pfeiffer’s opinion because of “imaging studies of the 20 lumbar spine” showing “mild findings.” AR 28. This statement, too, was vague and conclusory. 21 The ALJ failed to explain which imaging studies revealed mild findings, or how these imaging 22 studies contradicted Dr. Pfeiffer’s findings. In addition, this reason was error because the ALJ 23 gave greater weight to the reports containing the imaging studies than she gave to Dr. Pfeiffer’s 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -9 1 opinion without explaining why they are more persuasive. See Garrison, 759 F.3d at 1012-13 (an 2 ALJ cannot assign “little weight” to a medical opinion while asserting, without explanation, 3 “another medical opinion is more persuasive”). Accordingly, the ALJ’s brief statement that 4 imaging studies revealed mild findings is insufficient to reject Dr. Pfeiffer’s opinion. See 5 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an ALJ’s rejection of a physician’s 6 opinion on the ground that it was contrary to clinical findings in the record was “broad and 7 vague, failing to specify why the ALJ felt the treating physician’s opinion was flawed”). 8 Fifth, the ALJ gave Dr. Pfeiffer’s opinion little weight because Plaintiff “performed 9 medium level work for several months in 2014, which directly undermines the doctor’s opinion.” 10 AR 28. An ALJ may reject a physician’s opinion that contradicts the claimant’s activities. 11 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). However, “[i]t 12 does not follow from the fact that a claimant tried to work for a short period of time and, because 13 of his impairments, failed, that he did not then experience pain and limitations severe enough to 14 preclude him from maintaining substantial gainful employment.” Lingenfelter v. Astrue, 504 15 F.3d 1028, 1038 (9th Cir. 2007) (emphases in original). 16 In this case, although Plaintiff – apparently mistakenly – testified he worked for six 17 months in 2014, his earning records reflect he worked for approximately three months that year. 18 See AR 47-48, 62, 329, 330. Plaintiff testified he stopped this work, however, because it 19 exasperated his back pain and leg weakness. AR 48. As such, the fact that Plaintiff attempted to 20 work, but did not succeed, was not a sufficient reason to discount Dr. Pfeiffer’s opinion. See 21 Lingenfelter, 504 F.3d at 1038. 22 For the above stated reasons, the Court concludes the ALJ failed to provide specific, 23 legitimate reasons supported by substantial evidence for giving little weight to Dr. Pfeiffer’s 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 opinion. Therefore, the ALJ erred. Had the ALJ properly considered Dr. Pfeiffer’s opinion, the 2 RFC and the hypothetical questions posed to the VE may have included additional limitations. 3 For instance, the RFC and hypothetical questions may have limited Plaintiff to sedentary level 4 work. As the ultimate disability decision may have changed, the ALJ’s error is not harmless. See 5 Molina, 674 F.3d at 1115. 6 7 C. Drs. Comrie, Clifford, and Rubio Plaintiff further asserts the ALJ erred by assigning “significant weight” to the opinions of 8 non-examining physicians, Drs. Comrie, Clifford, and Rubio. Dkt. 15, pp. 6-7. A non-examining 9 physician’s opinion may constitute substantial evidence when it is consistent with other 10 independent evidence in the record. Tonapetyan, 242 F.3d at 1149. Thus, given that proper 11 consideration of the medical opinion evidence from Drs. Gist and Pfeiffer may impact the ALJ’s 12 treatment of the non-examining physicians, the ALJ is directed to reassess the opinions of these 13 non-examining physicians as necessary on remand, as well. 14 II. Whether the ALJ properly assessed the lay witness testimony and Plaintiff’s subjective symptom testimony. 15 Plaintiff asserts the ALJ improperly assessed lay witness testimony and Plaintiff’s 16 subjective symptom testimony. Dkt. 15, pp. 8-12. The Court has concluded the ALJ committed 17 harmful error in his assessment of medical opinion evidence. See Section I., supra. Because the 18 ALJ’s reconsideration of this medical opinion evidence may impact her assessment of the lay 19 witness testimony and Plaintiff’s subjective symptom testimony, the ALJ is directed to 20 reconsider this evidence on remand. 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11 1 III. Whether the ALJ’s decision to limit cross-examination of the VE was appropriate. 2 Lastly, Plaintiff contends the ALJ erred by limiting Plaintiff’s attorney’s ability to 3 conduct cross-examination on the VE at the hearing. Dkt. 15, p. 13 (citing AR 76). Because the 4 Court is remanding this matter for a de novo hearing, the Court declines to consider whether the 5 ALJ erred on this issue. 6 CONCLUSION 7 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 8 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 9 this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for a de novo hearing in 10 accordance with the findings contained herein. The Clerk is directed to enter judgment for 11 Plaintiff and close the case. 12 Dated this 14th day of June, 2018. 13 14 A 15 David W. Christel United States Magistrate Judge 16 17 18 19 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 12
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