Anderson v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 5, 2021
• Docket: 3:20-cv-05338
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 MITCHELL A., 8 Plaintiff, Case No. C20-5338 RSM 9 v. ORDER REVERSING 10 DEFENDANT’S DECISION TO COMMISSIONER OF SOCIAL SECURITY, DENY BENEFITS AND 11 REMANDING FOR FURTHER Defendant. PROCEEDINGS 12

13 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. 14 Plaintiff contends the Administrative Law Judge (“ALJ”) erred by (1) rejecting the opinions of 15 treating doctor Martin Tullus, M.D.; (2) accepting the opinions of a state agency physician 16 (Plaintiff fails to identify a particular physician); (3) failing to limit Plaintiff to less than light 17 work in the residual functional capacity (“RFC”) assessment; (4) failing to adequately consider 18 lay witness testimony from Plaintiff’s wife; and (5) failing to adequately consider a disability 19 determination from the Department of Veterans Affairs (“VA”). Pl. Op. Br. (Dkt. 17), pp. 1–2. 20 As discussed below, the Court REVERSES the Commissioner’s final decision and REMANDS 21 the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 22 BACKGROUND 23 Plaintiff is 61 years old, has a college education, and has worked as an investigator. ORDER REVERSING DEFENDANT’S DECISION TO 1 Admin. Record (“AR”) 28, 42, 79. On January 17, 2018, Plaintiff applied for benefits, alleging 2 disability as of December 28, 2017. AR 79, 176–82. Plaintiff’s applications were denied 3 initially and on reconsideration. AR 78–105. After the ALJ conducted a hearing on February 4 15, 2019, the ALJ issued a decision finding Plaintiff not disabled. AR 15–29, 35–77. In relevant 5 part, the ALJ found Plaintiff had severe impairments of mild bilateral knee osteoarthritis, 6 depressive disorder, and posttraumatic stress disorder (“PTSD”). AR 18. The ALJ found 7 Plaintiff had the RFC to perform medium work with additional limitations. AR 20. Plaintiff 8 could occasionally climb ladders, ropes, scaffolds, ramps, or stairs, kneel, crouch, and crawl. Id. 9 He could balance and stoop without limitations. Id. Plaintiff could have no exposure to hazards 10 such as unprotected heights and unguarded moving mechanical parts. Id. He could perform

11 independent tasks. Id. He could have superficial contact with supervisors, coworkers, and the 12 general public. Id. 13 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 14 Commissioner’s final decision. AR 1–3. 15 DISCUSSION 16 This Court may set aside the Commissioner’s denial of Social Security benefits only if 17 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 18 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). The ALJ is responsible for 19 evaluating evidence, resolving conflicts in medical testimony, and resolving any other 20 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Although

21 the Court is required to examine the record as a whole, it may neither reweigh the evidence nor 22 substitute its judgment for that of the ALJ. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 23 2002). When the evidence is susceptible to more than one interpretation, the ALJ’s ORDER REVERSING DEFENDANT’S DECISION TO 1 interpretation must be upheld if rational. Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2 2005). This Court “may not reverse an ALJ’s decision on account of an error that is harmless.” 3 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 4 1. Dr. Tullus’s Opinions 5 Plaintiff argues the ALJ failed to give adequate reasons for rejecting Dr. Tullus’s 6 opinions. Pl. Op. Br., pp. 2–6. Dr. Tullus was one of Plaintiff’s treating providers. See AR 7 869–877. Dr. Tullus completed a questionnaire from Plaintiff’s counsel regarding Plaintiff’s 8 limitations. See AR 878. Dr. Tullus opined Plaintiff had bilateral knee early osteoarthritis. Id. 9 He opined Plaintiff could stand/walk for two to four hours in an eight-hour workday, sit upright 10 for four to six hours, and lift a maximum of ten pounds. Id.

11 The ALJ found Dr. Tullus’s opinions “not persuasive.” AR 27. The ALJ reasoned the 12 opinions were inconsistent with the overall medical evidence, relied too heavily on Plaintiff’s 13 subjective reports, were inconsistent with Dr. Tullus’s own treatment notes, and were 14 inconsistent with Plaintiff’s activities of daily living. Id. 15 The Commissioner argues new regulations promulgated in 2017 change the standard by 16 which the ALJ’s reasons for rejecting medical providers’ opinions are measured. See Def. Resp. 17 Br. (Dkt. 18), pp. 3–7. Under current Ninth Circuit precedent, an ALJ must provide “clear and 18 convincing” reasons to reject an uncontradicted opinion from a treating or examining doctor, and 19 “specific and legitimate” reasons to reject a contradicted opinion from such doctor. Lester v. 20 Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). Dr. Tullus’s opinions were contradicted by the

21 opinions of Alnoor Virji, M.D., and Wayne Hurley, M.D., so the specific and legitimate standard 22 would apply unless the Commissioner’s new regulations change this standard. AR 86, 101. 23 The genesis of the “specific and legitimate” standard for contradicted opinions was the ORDER REVERSING DEFENDANT’S DECISION TO 1 Ninth Circuit’s decision in Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983). In Murray, the ALJ 2 rejected the opinions of a treating doctor in favor of the opinions of an examining doctor. See id. 3 at 501. The Ninth Circuit reviewed precedent from other circuits and determined an ALJ must 4 ordinarily give more weight to the opinions of a treating doctor because that doctor is 5 “‘employed to cure’” the claimant and has a “‘greater opportunity to observe and know the 6 patient as an individual.’” Id. at 502 (quoting Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir. 7 1983)). Thus, “[i]f the ALJ wishes to disregard the opinion of the treating physician, he or she 8 must make findings setting forth specific, legitimate reasons for doing so that are based on 9 substantial evidence in the record.” Murray, 799 F.2d at 502. The Ninth Circuit made no 10 reference to regulations promulgated by the Social Security Administration regarding treatment

11 of medical opinions in reaching its conclusion. See id. 12 In 1991, the Commissioner promulgated regulations setting forth standards for reviewing 13 medical regulations. 56 Fed. Reg. 36932-01, 1991 WL 142361 (Aug. 1, 1991). Those 14 regulations established a hierarchy mirroring the one set out by the Ninth Circuit, in which 15 treating sources are given more weight than non-treating sources, and examining sources are 16 given more weight than non-examining sources. See id. at *36935–36; 20 C.F.R. §§ 17 404.1527(c), 416.927(c). The Ninth Circuit mentioned these regulations in its 1995 opinion in 18 Lester, and continued to rely on the “specific and legitimate” standard. See Lester, 81 F.3d at 19 830–31. 20 In 2017, the Commissioner issued revised regulations eliminating the hierarchy of

21 medical opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 22 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, for claims 23 filed on or after March 27, 2017, the Commissioner “will not defer or give any specific ORDER REVERSING DEFENDANT’S DECISION TO 1 evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant’s] 2 medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The Commissioner’s new 3 regulations still require the ALJ to explain his or her reasoning, and to specifically address how 4 he or she considered the supportability and consistency of the opinion. See 20 C.F.R. §§ 5 404.1520c, 416.920c. 6 The Ninth Circuit has not yet considered whether the 2017 regulations will cause it to 7 reevaluate the standard set forth in Murray for review of medical opinions. This Court is bound 8 by precedent of the Ninth Circuit and may not overrule a decision from that court. See In re 9 Albert-Sheridan, 960 F.3d 1188, 1192–93 (9th Cir. 2020); Hart v. Massanari, 266 F.3d 1155, 10 1171 (9th Cir. 2001); see also Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455 (2015)

11 (“Overruling precedent is never a small matter.”). 12 The new regulations do not clearly supersede the “specific and legitimate” standard. That 13 standard is not an articulation of how ALJs must weigh or evaluate opinions, but rather a 14 standard by which the court evaluates whether the ALJ has reasonably articulated his or her 15 consideration of the evidence. Whatever factors the Commissioner considers in evaluating a 16 medical opinion, the ALJ must explain his or her reasoning to allow for meaningful judicial 17 review, and the Ninth Circuit’s “specific and legitimate” standard is merely a benchmark against 18 which the Court evaluates that reasoning. 19 Turning to the ALJ’s evaluation of Dr. Tullus’s opinions, the ALJ’s reasoning is not 20 supported by substantial evidence. First, the ALJ failed to explain how the medical evidence and

21 Dr. Tullus’s treatment notes were inconsistent with Dr. Tullus’s opinions. See Garrison v. 22 Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 23 (9th Cir. 1996) (“[A]n ALJ errs when he rejects a medical opinion . . . while doing nothing more ORDER REVERSING DEFENDANT’S DECISION TO 1 than ignoring it, asserting without explanation that another medical opinion is more persuasive, 2 or criticizing it with boilerplate language that fails to offer a substantive basis for his 3 conclusion.”)). The ALJ noted x-rays of Plaintiff’s knees showed findings consistent with mild 4 osteoarthrosis, and physical exams documented normal gait with mild tenderness in Plaintiff’s 5 knees. See AR 24–25, 27, 380–81, 756, 869–70. These records are not undeniably inconsistent 6 with Dr. Tullus’s opinions, and thus required the ALJ to explain the inconsistency, which she did 7 not do. The ALJ failed to explain, for example, how x-rays showing mild osteoarthrosis are 8 inconsistent with Dr. Tullus’s opinion that Plaintiff could stand and walk for two to four hours in 9 an eight-hour workday. 10 Second, the ALJ’s determination that Dr. Tullus relied too heavily on Plaintiff’s

11 subjective reports lacks evidentiary support. Dr. Tullus treated Plaintiff on several occasions, 12 making objective observations (which, as mentioned above, the ALJ did not accurately assess). 13 See AR 869–877. There is no evidence in the record indicating Dr. Tullus ignored his own 14 findings in favor of Plaintiff’s subjective claims. Cf. Lester, 81 F.3d at 832 (“The [ALJ] may not 15 assume that doctors routinely lie in order to help their patients collect disability benefits.”). 16 Third, the ALJ’s finding that Dr. Tullus’s opined limitations were inconsistent with 17 Plaintiff’s daily activities lacks adequate evidentiary support. The ALJ noted Plaintiff performed 18 household chores, repairs, and yard work, cared for his granddaughters, and took a vacation to 19 Whistler, British Columbia. See AR 27, 272, 280–81, 794. The ALJ failed to explain how any 20 of these activities were inconsistent with Dr. Tullus’s opinions that Plaintiff could stand/walk for

21 two to four hours, sit for four to six hours, and lift a maximum of ten pounds. There is no 22 obvious inconsistency, and thus the ALJ failed to provide any specific and legitimate reasons for 23 rejecting Dr. Tullus’s opinions. ORDER REVERSING DEFENDANT’S DECISION TO 1 2. State Agency Physicians’ Opinions 2 Plaintiff argues the ALJ erred by relying on the opinions of state agency physicians in 3 finding Plaintiff could perform medium work. Pl. Op. Br., p. 6. Plaintiff does not identify a 4 particular physician, and thus fails to adequately present a claim of error. See Carmickle, 533 5 F.3d at 1161 n.2 (declining to address claimant’s assertion of error that was not argued “with any 6 specificity in his briefing”). However, because the ALJ erred in evaluating Dr. Tullus’s 7 opinions, and that evaluation may affect the ALJ’s evaluation of other providers on remand, the 8 ALJ may revisit the opinions of any state agency physicians on remand. 9 3. The RFC Assessment 10 Plaintiff argues the ALJ erred in finding Plaintiff could perform work above the light

11 work level. Pl. Op. Br., p. 7. Plaintiff’s argument is based on his arguments that the ALJ erred 12 in rejecting Dr. Tullus’s opinions and accepting the state agency physicians’ opinions. See id. 13 Because the Court has found the ALJ erred in evaluating Dr. Tullus’s opinions, Plaintiff’s 14 argument succeeds. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040–41 (9th Cir. 2007) (holding 15 ALJ’s RFC assessment and step five determination were not supported by substantial evidence 16 where RFC and hypotheticals to vocational expert failed to include all of the claimant’s 17 impairments). 18 4. Plaintiff’s Wife’s Statements 19 Plaintiff argues the ALJ failed to adequately evaluate a lay witness statement from 20 Plaintiff’s wife concerning Plaintiff’s physical limitations. Pl. Op. Br., pp. 7–8. Plaintiff’s wife

21 reported Plaintiff has difficulty lifting, walking, sitting, and climbing stairs due to knee 22 problems. See AR 283. She reported “sometimes” Plaintiff cannot walk far, “maybe from a 23 parking lot to an entrance.” Id. The ALJ stated she “considered” these statements, but did not ORDER REVERSING DEFENDANT’S DECISION TO 1 explicitly state whether she accepted or rejected them. AR 26. 2 In determining disability, “‘an ALJ must consider lay witness testimony concerning a 3 claimant’s ability to work.’” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout 4 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). The ALJ must “give reasons 5 germane to each witness” before he can reject such lay witness evidence. Molina, 674 F.3d at 6 1111 (internal citations and quotation marks omitted). “Further, the reasons ‘germane to each 7 witness’ must be specific.” Bruce, 557 F.3d at 1115 (quoting Stout, 454 F.3d at 1054). 8 Plaintiff has failed to show harmful error. See Ludwig v. Astrue, 681 F.3d 1047, 1054 9 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407–09 (2009)). Although the ALJ did 10 not adequately identify reasons for rejecting Plaintiff’s wife’s statements, those statements were

11 substantially similar to Plaintiff’s testimony. See AR 49–50, 283. Where lay witness testimony 12 does not describe any limitations beyond those the claimant described, and the ALJ adequately 13 evaluated the claimant’s testimony, failure to evaluate the lay witness testimony is harmless. See 14 Molina, 674 F.3d at 1122. The ALJ rejected Plaintiff’s testimony, and Plaintiff has not 15 challenged that determination. See AR 21–26. The reasons for rejecting Plaintiff’s testimony 16 can apply with equal force to Plaintiff’s wife’s testimony, and the ALJ thus did not harmfully err. 17 5. The VA Disability Decision 18 Plaintiff argues the ALJ erred because she misstated the VA’s disability ratings, and 19 failed to adequately state how she considered the VA’s decision. Pl. Op. Br., pp. 8–9. The VA 20 found Plaintiff had service-connected disabilities of PTSD, rated at 70%, right patella

21 chondromalacia, rated at 30%, and left patella chondromalacia, rated at 30%, for a combined 22 rating of 90%. See AR 184, 210, 221. The ALJ correctly reported in her decision that Plaintiff 23 had a combined disability rating of 90%, but incorrectly reported the individual rating ORDER REVERSING DEFENDANT’S DECISION TO 1 percentages. See AR 27. The ALJ then noted she “considered the VA rating in assessing the 2 claimant’s severe medically determinable impairments and [RFC].” Id. 3 Under the Commissioner’s old regulations, an ALJ was required to consider the VA’s 4 disability rating, and should “‘ordinarily give great weight to a VA determination of disability.’” 5 Luther v. Berryhill, 891 F.3d 872, 876 (9th Cir. 2018) (quoting McLeod v. Astrue, 640 F.3d 881, 6 886 (9th Cir. 2011)). The ALJ could, however, “give less weight to a VA rating ‘if [the ALJ 7 gave] persuasive, specific, valid reasons for doing so that [were] supported by the record.’” 8 Luther, 891 at 876–77 (quoting Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 695 (9th 9 Cir. 2009)). 10 The Commissioner’s new regulations purportedly eliminate the requirement that the ALJ

11 discuss a VA determination. Under 20 C.F.R. §404.1504, for claims filed on or after March 27, 12 2017, the Commissioner “will not provide any analysis in [his] determination or decision about a 13 decision made by any other governmental agency or nongovernmental entity about whether [the 14 claimant is] disabled, blind, employable, or entitled to any benefits.” The ALJ must still 15 “consider all of the supporting evidence underlying the other governmental agency or 16 nongovernmental entity’s decision” received as part of the social security disability claim. Id. 17 Plaintiff has failed to show harmful error. See Ludwig, 681 F.3d at 1054 (citing Shinseki, 18 556 U.S. at 407–09). Although the ALJ incorrectly stated the VA’s individual rating percentages 19 and did not explain how she considered the VA rating, she considered the evidence underlying 20 that decision. Many of the medical records in this case came from providers associated with the

21 VA. See AR 378–847, 879–915. The ALJ discussed these records throughout her decision. See 22 AR 21–27. The ALJ thus satisfied her obligations under the new regulations, and Plaintiff has 23 failed to show harmful error. See Liner v. Comm’r of Soc. Sec., No. C19-1892-MLP, 2020 WL ORDER REVERSING DEFENDANT’S DECISION TO 1 2219316, at *4–5 (W.D. Wash. May 7, 2020); Kathleen S. v. Comm’r of Soc. Sec., No. C19-5167 2 RSL, 2019 WL 4855631, at *7–8 (W.D. Wash. Oct. 2, 2019). 3 6. Scope of Remand 4 Plaintiff asks the Court to remand this matter for an award of benefits, but does not make 5 any substantive argument in support of this request. See Pl. Op. Br., p. 9. Plaintiff has not 6 shown “rare circumstances” exist that justify departing from the ordinary rule of remand for 7 further proceedings. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 8 2014). The Court therefore remands this matter for further administrative proceedings. 9 On remand, the ALJ shall reevaluate Dr. Tullus’s opinions, and may reevaluate any state 10 agency physicians’ opinions. The ALJ shall reassess Plaintiff’s RFC, reevaluate all relevant

11 steps of the disability evaluation process, and conduct further proceedings necessary to 12 reevaluate the disability determination in light of this opinion. 13 CONCLUSION 14 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 15 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 16 405(g). 17 DATED this 5th day of January, 2021.

19 A 20 RICARDO S. MARTINEZ 21 CHIEF UNITED STATES DISTRICT JUDGE

22 23 ORDER REVERSING DEFENDANT’S DECISION TO