Kong v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 11, 2019
• Docket: 3:18-cv-05942
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 VETH K., 8 Plaintiff, CASE NO. C18-5942-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff seeks review of the denial of her application for Disability Insurance Benefits. 14 She contends the ALJ erred in assessing the opinions of several doctors, her subjective 15 testimony, and her son’s lay statement, and these errors led to a residual functional capacity 16 (“RFC”) determination that does not account for all of her limitations. Dkt. 13. For the reasons 17 below, the Court REVERSES the Commissioner’s final decision and REMANDS the matter for 18 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 19 BACKGROUND 20 Plaintiff is currently 55 years old, had some high school education in Thailand and had 21 additional sewing training, and has worked in the United States as a seamstress. Tr. 54, 182. In 22 November 2013, she applied for benefits, alleging disability as of April 24, 2013. Tr. 160-66. 23 Her application was denied initially and on reconsideration. Tr. 101-03, 107-11. The ALJ 1 conducted a hearing on January 28, 2016 (Tr. 49-75), and subsequently found Plaintiff not 2 disabled. Tr. 28-39. The Appeals Council denied review making the ALJ’s decision the 3 Commissioner’s final decision. Tr. 15-20. 4 THE ALJ’S DECISION

5 Utilizing the five-step disability evaluation process,1 the ALJ found:

6 Step one: Plaintiff had not engaged in substantial gainful activity since the alleged onset date. 7 Step two: Plaintiff’s carpal tunnel sundrome, status post surgical repair; shoulder 8 tendinitis; adhesive capsulitis; degenerative disc disease; minimal degenerative joint disease of the wrist; migraine; shoulder impingement; and scapular dyskinesia are severe 9 impairments.

10 Step three: These impairments did not meet or equal the requirements of a listed impairment.2 11 RFC: Plaintiff can perform light work with additional limitations: she cannot climb 12 ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, balance, stoop, kneel, and crouch. She can perform work that does not require her to crawl. She can 13 perform work that avoids concentrated exposure to extreme temperatures, hazards, and vibrations. She can occasionally reach overhead bilaterally. She can frequently reach in 14 all other directions, handle, finger, and feel with the left arm. She can occasionally reach in all other directions, handle, finger, and feel with the right arm. 15 Step four: Plaintiff cannot perform her past work. 16 Step five: As there are jobs that exist in significant numbers in the national economy that 17 Plaintiff can perform, she is not disabled.

18 Tr. 28-39.

19 DISCUSSION 20 A. Medical evidence 21 Plaintiff argues the ALJ erred in assessing the medical opinion evidence, specifically the 22

23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 opinions of examining physicians Nicholas Branting, M.D., and Jonathan Harrison, M.D., and 2 the State agency non-examining medical consultant. Dkt. 13 at 2-10. The Court will address 3 each disputed opinion in turn.3 4 1. Dr. Branting

5 Dr. Branting examined Plaintiff in March 2014 and wrote a narrative report describing 6 her symptoms and limitations. Tr. 292-95. The ALJ gave partial weight to Dr. Branting’s 7 opinion, finding Plaintiff to be more limited than described by him, in that she had manipulative 8 and postural limitations not referenced by Dr. Branting. Tr. 36. 9 Plaintiff argues that Dr. Branting’s opinion is inconsistent with the ALJ’s RFC 10 assessment because Dr. Branting documented Plaintiff’s complaint of right shoulder pain. Dkt. 11 13 at 3. While Dr. Branting mentions Plaintiff’s report of shoulder pain (see Tr. 292, 295), the 12 doctor nonetheless found Plaintiff to be limited in the manner he described. See Tr. 295. As 13 mentioned above, the ALJ found Plaintiff to be more limited than described by Dr. Branting. Tr. 14 36. Plaintiff has failed to show the ALJ’s assessment of Dr. Branting’s opinion is erroneous.

15 2. Dr. Harrison 16 Dr. Harrison examined Plaintiff in June 2016 and completed a narrative report as well as 17 a checkbox form describing Plaintiff’s limitations. Tr. 590-600. According to the ALJ, Dr. 18 Harrison did not mention any reaching limitations on Plaintiff’s left side in the narrative report, 19 which undermined his opinion in the checkbox form that she was limited to occasional reaching 20 on the left. Tr. 36. The ALJ found the occasional reaching limitations on the left side as 21

3 Plaintiff also devotes pages of her brief summarizing other medical evidence, but fails to 22 connect that evidence with a specific error in the ALJ’s decision. Dkt. 13 at 4-9. Although Plaintiff contends this evidence shows her testimony had an objective basis (Dkt. 13 at 5), her 23 summary of the evidence does not prove the ALJ’s assessment of the medical evidence or her testimony was erroneous. 1 described in the checkbox form were not as well explained and supported as the reaching 2 limitations described in the narrative report, and thus credited the narrative report rather than the 3 checkbox form in that respect. Id. Otherwise, the ALJ gave significant weight to Dr. Harrison’s 4 conclusions. Id.

5 Plaintiff argues the ALJ erred in finding a discrepancy in Dr. Harrison’s opinions as to 6 reaching limitations because in the narrative report, he indicated Plaintiff was limited to 7 occasional reaching overhead and forward bilaterally, which is not inconsistent with his opinion 8 on the checkbox form that Plaintiff was limited to occasional reaching overhead and in any other 9 direction with the left. Dkt. 13 at 4. The record shows there is a discrepancy between the types 10 of reaching discussed in the doctor’s narrative report and the checkbox form: both opinions 11 reference overhead reaching, but the narrative report mentions forward reaching and the 12 checkbox form mentions reaching in all other non-overhead directions. Compare Tr. 593 with 13 Tr. 597. Thus, although Dr. Harrison said in his narrative report Plaintiff could reach forward 14 only occasionally bilaterally (and did not opine about directions other than forward or overhead),

15 in the checkbox form he opined Plaintiff could reach in any direction occasionally with both 16 right and left. Id. The Commissioner mentions Dr. Harrison’s narrative report references 17 occasional forward reaching bilaterally, but does not acknowledge this report is inconsistent with 18 the RFC assessment, which indicates Plaintiff could frequently reach in all non-overhead 19 directions with her left side. See Dkt. 16 at 4 (citing Tr. 33). 20 Because the ALJ purported to credit Dr. Harrison’s narrative report as to the reaching 21 limtiations, but did not entirely account for that opinion specifically as to the limitation to 22 occasional forward reaching on the left, the ALJ erred. See Social Security Ruling 96-8p, 1996 23 WL 374184, at *7 (Jul. 2, 1996) (“If the RFC assessment conflicts with an opinion from a 1 medical source, the adjudicator must explain why the opinion was not adopted.”). On remand, 2 the ALJ must reconsider Dr. Harrison’s opinions and either credit them, or provide valid reasons 3 to discount them. 4 3. State agency consultants

5 Plaintiff argues the ALJ erred in giving partial weight to a State agency opinion because 6 it was not based on an examination and the record was incomplete at the time the record was 7 reviewed. Dkt. 13 at 9. These arguments fail. The ALJ is entitled to consider the opinions of a 8 non-examining doctor. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The 9 opinions of non-treating or non-examining physicians may also serve as substantial evidence 10 when the opinions are consistent with independent clinical findings or other evidence in the 11 record.”). The ALJ also properly considered the entire record before him (rather than only the 12 record before the State agency consultant) when deciding probative value of the State agency 13 opinions, and in fact found the record indicated Plaintiff was more limited than found by the 14 State agency. See Tr. 36. Plaintiff has failed to meet her burden to show error in the ALJ’s

15 assessment of the State agency opinion. 16 B. Plaintiff’s testimony 17 The ALJ discounted Plaintiff’s testimony alleging disability, finding it inconsistent with: 18 (1) objective medical evidence showing she was less limited than alleged, (2) evidence showing 19 that she did not consistently take medication and/or follow through with treatment 20 recommendations for her headaches, and (3) evidence that she stopped working for reasons 21 unrelated to her impairments and continued to seek jobs. Tr. 34-35. Plaintiff contends these 22 reasons are not clear and convincing, as required by Circuit law. See Burrell v. Colvin, 775 F.3d 23 1133, 1136-37 (9th Cir. 2014). 1 Regarding the ALJ’s first reason, Plaintiff relies on her contentions discussed in the 2 previous section about the ALJ’s assessment of the medical evidence. Dkt. 13 at 10. Although, 3 the Court finds the ALJ misapprehended the full extent of Dr. Harrison’s opinion regarding 4 Plaintiff’s reaching limitations, Plaintiff has merely alleged but not shown how this error tainted

5 the ALJ’s assessment of her own testimony. Further Plaintiff does not address the ALJ’s 6 reasoning related to her headache allegations. Dkt. 13 at 10-11. 7 Plaintiff admits she stopped working for reasons unrelated to her impairments and 8 continued to look for work, but contends this fact is not grounds to discount her testimony 9 because her condition worsened since she stopped working. Dkt. 13 at 11. Plaintiff cites no 10 authority for this proposition; the Court thus finds Plaintiff has not met her burden to show the 11 ALJ erred. See Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) (affirming an ALJ’s 12 discounting of a claimant’s testimony where the claimant admitted “that he left his job because 13 his employer went out of business and probably would have worked longer had his employer 14 continued to operate”).

15 Because the ALJ provided multiple clear and convincing reasons to discount Plaintiff’s 16 testimony, Plaintiff has not shown error in the ALJ’s assessment of her allegations.4 17 18 19

4 Plaintiff also includes a summary of her testimony in her briefing. Dkt. 13 at 11-15. This 20 summary is untethered to specific legal arguments. Plaintiff suggests in this section and elsewhere in the brief the ALJ erred in finding she was capable of communicating in English. 21 Dkt. 13 at 15, 17; Tr. 37. As noted by the ALJ, Plaintiff participated in the hearing without an interpreter (Tr. 37), and many of Plaintiff’s medical records suggest she also engaged in medical 22 care without an interpreter. Plaintiff’s providers did, on occasion, question whether Plaintiff was able to read written English sufficiently. See, e.g., Tr. 442, 457. On remand, Plaintiff may 23 provide further argument to the ALJ regarding her ability to communicate orally and in writing in English. 1 C. Lay testimony 2 Plaintiff’s son completed a third-party function report in January 2014. Tr. 187-94. The 3 ALJ discounted Plaintiff’s son’s report of disabling limitations as inconsistent with the objective 4 medical evidence, showing Plaintiff’s condition was only mild to moderate in severity. Tr. 35-

5 36. Plaintiff argues this reasoning is not germane because the ALJ did not identify any medical 6 evidence that actually contradicts Plaintiff’s son’s description of her limitations. Dkt. 13 at 15- 7 16. 8 The ALJ did, in fact, cite evidence that contradicts Plaintiff’s son’s statement, however. 9 The ALJ cited a medical report indicating an x-ray and normal examination of Plaintiff’s 10 shoulders in January 2014 despite her allegations of pain, and unchanged findings since 11 November 2011, when she was working. Tr. 36 (citing Tr. 321). The ALJ also cited a report 12 describing an MRI of Plaintiff’s cervical spine, describing mild and moderate findings. Tr. 447. 13 The ALJ reasonably construed the medical evidence to be inconsistent with Plaintiff’s son’s 14 description of disabling physical limitations, and did not err in discounting his statement on that

15 basis. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (affirming an ALJ’s 16 rejection of claimant’s family members’ statements based on inconsistency with medical 17 evidence). 18 CONCLUSION 19 For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is 20 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 21 On remand, the ALJ shall reconsider Dr. Harrison’s opinions, develop the record and 22 redetermine Plaintiff’s RFC as needed, and proceed to the remaining steps as appropriate. 23 1 Plaintiff may provide further evidence or argument to the ALJ regarding her ability to 2 communicate orally and in writing in English. 3 DATED this 11th day of September, 2019. 4 A

5 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 6

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