Namock v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 23, 2020
• Docket: 3:19-cv-05887
• Status: Unknown

Opinion

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5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 DANNY L. N., 9 CASE NO. 3:19-CV-5887 - DWC Plaintiff, 10 ORDER REVERSING AND v. REMANDING DEFENDANT’S 11 DECISION TO DENY BENEFITS COMMISSIONER OF SOCIAL SECURITY, 12

Defendant. 13

14 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 15 Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) and 16 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 17 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 18 the undersigned Magistrate Judge. See Dkt. 3. 19 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 20 erred when she improperly evaluated the opinions of Drs. Renee Eisenhauer and Dan Donohue. 21 The ALJ’s error is therefore harmful, and this matter is reversed and remanded pursuant to 22 sentence four of 42 U.S.C. § 405(g) to the Commissioner of the Social Security Administration 23 (“Commissioner”) for further proceedings consistent with this Order. 24 1 FACTUAL AND PROCEDURAL HISTORY 2 On November 9, 2016, Plaintiff filed applications for SSI and DIB, alleging disability as 3 of September 8, 2015. See Dkt. 6, Administrative Record (“AR”) 16. The application was denied 4 upon initial administrative review and on reconsideration. See AR 16. A hearing was held before

5 ALJ Elizabeth Watson on July 24, 2018. See AR 16. In a decision dated October 24, 2018, the 6 ALJ determined Plaintiff to be not disabled. See AR 25. Plaintiff’s request for review of the 7 ALJ’s decision was denied by the Appeals Council, making the ALJ’s decision the final decision 8 of the Commissioner. See AR 15; 20 C.F.R. § 404.981, § 416.1481. 9 In the Opening Brief, Plaintiff maintains the ALJ erred by improperly: (1) evaluating the 10 medical opinion evidence; and (2) evaluating Plaintiff’s subjective symptom testimony and the 11 lay witness testimony. Dkt. 8. As a result of these alleged errors, Plaintiff requests an award of 12 benefits. Dkt. 8. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of

15 social security benefits if the ALJ’s findings are based on legal error or not supported by 16 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 17 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 18 DISCUSSION 19 I. Whether the ALJ properly evaluated the medical evidence.

20 Plaintiff first asserts the ALJ failed to include in the residual functional capacity (“RFC”) 21 those limitations opined to by Drs. Eisenhauer and Donohue despite giving the opinion great 22 weight. Dkt. 8, pp. 3-5. Plaintiff next contends the ALJ erred by improperly evaluating the 23 opinion of Dr. Brett Valette. Dkt. 8, pp. 5-8. 24 1 In assessing an acceptable medical source, an ALJ must provide “clear and convincing” 2 reasons for rejecting the uncontradicted opinion of either a treating or examining physician. 3 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 4 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). When a treating or

5 examining physician’s opinion is contradicted, the opinion can be rejected “for specific and 6 legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 7 830-831 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)); Murray v. Heckler, 8 722 F.2d 499, 502 (9th Cir. 1983). The ALJ can accomplish this by “setting out a detailed and 9 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 10 thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing 11 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 12 A. Drs. Eisenhauer and Donohue 13 Disability Determination Service (“DDS”) psychologist Dr. Eisenhauer completed a 14 mental residual functional capacity assessment of Plaintiff. AR 66-68, 78-80. Dr. Eisenhauer

15 opined Plaintiff was able to follow 3-step instructions and to make simple work-related 16 changes. AR 78. She also opined Plaintiff was capable of superficial contact with coworkers 17 and supervisors. AR 79. Dr. Donohue later reviewed and affirmed Dr. Eisenhauer’s opinion. 18 AR 96-97, 112-113. The ALJ discussed Drs. Eisenhauer and Donohue’s opinion and gave it 19 great weight, saying: 20 These opinions have also been accorded great weight to the extent that they are consistent with the limitations assessed in the residual functional capacity as these 21 limitations are supported by the observations of the claimant in the record as well as the mental status findings of Dr. Valette, discussed above. They are also 22 consistent with the claimant’s reported activities.

23 AR 23 (citations omitted). 24 1 Although the ALJ afforded Drs. Eisenhauer and Donohue’s opinion great weight, 2 Plaintiff asserts the ALJ erred by failing to include some of the opined limitations in the RFC. 3 See Dkt. 8, pp. 3-5. Plaintiff points to three limitations opined to by Drs. Eisenhauer and 4 Donohue and claims they were not incorporated into the RFC. First, that Plaintiff is able to

5 follow 3-step instructions; second, that Plaintiff is capable of superficial contact with 6 coworkers and supervisors; and third, that Plaintiff is capable of “simple work related 7 changes…” AR 66-67. In the RFC, the ALJ found that Plaintiff is able to perform sedentary 8 work. AR 20. The RFC continued as follows: 9 In addition, the claimant must be allowed to alternate sitting and/or standing positions as needed while remaining on task. He will require a cane as needed for 10 ambulation. The claimant is limited to occasional pushing and/or pulling with the left lower extremity. The claimant is also limited to occasional climbing of ramps 11 and stairs and no climbing of ladders, ropes, or scaffolds. He is further limited to occasional balancing, stooping, kneeling, and crawling. He must never crouch. 12 He must also avoid concentrated exposure to extreme cold. He must avoid even moderate exposure to workplace hazards such as hazardous machinery and 13 unprotected heights. Finally, the claimant is limited to understanding and carrying out simple instructions and he is limited to no contact with the general 14 public and no more than occasional contact with co-workers and supervisors.

15 AR 20 (emphasis added). 16 The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 17 739 F.3d 1393, 1394-1395 (9th Cir. 1984). However, the ALJ “may not reject ‘significant 18 probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-571 (9th Cir. 19 1995) (quoting Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for 20 disregarding [such] evidence.” Flores, 49 F.3d at 571. 21 First, the ALJ failed to incorporate Drs. Eisenhauer and Donohue’s opinion that 22 Plaintiff is able to follow 3-step instructions. See AR 20. Although the ALJ limited Plaintiff to 23 understanding and carrying out simple instructions, the ALJ did not correlate how this 24 1 limitation encompasses the doctors’ opinion regarding Plaintiff’s ability to follow 3-step 2 instructions. Second, the ALJ failed to incorporate the opined limitation that Plaintiff is 3 capable of superficial contact with co-workers and supervisors. See AR 20. Again, although the 4 ALJ made a similar limitation by restricting Plaintiff to no more than occasional contact with

5 co-workers and supervisors, this limitation does not directly incorporate the doctors’ opinion 6 limiting Plaintiff to superficial contact with co-workers and supervisors. Third, the ALJ failed 7 to discuss Plaintiff’s ability to respond to changes in the workplace. See AR 20. Accordingly, 8 because the ALJ gave Drs. Eisenhauer and Donohue’s opinion great weight but did not include 9 all the limitations contained therein in the RFC, the ALJ erred by failing to consider significant 10 probative evidence. See Flores, 49 F.3d at 570-571. 11 “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 674 12 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the 13 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 14 Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115.

15 The determination as to whether an error is harmless requires a “case-specific application of 16 judgment” by the reviewing court, based on an examination of the record made “‘without regard to 17 errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 (quoting 18 Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). 19 In assessing the RFC, the ALJ limited Plaintiff to understanding and carrying out simple 20 instructions and to no more than occasional contact with co-workers and supervisors. AR 20. In 21 contrast, Drs. Eisenhauer and Donohue opined that Plaintiff is able to follow 3-step instructions 22 and is capable of superficial contact with co-workers and supervisors. AR 66-67, 96-97. The 23 RFC does not address Plaintiff’s ability to respond to changes in the work environment, despite

24 1 Drs. Eisenhauer and Donohue opining that Plaintiff is capable of simple work changes. See AR 2 20, 66-67, 96-97. As the ALJ gave the doctors’ opinion great weight but did not include in the 3 RFC all the limitations contained therein, the RFC is defective. See Valentine v. Commissioner 4 Social Sec. Admin., 574 F.3d 685, 690 (“an RFC that fails to take into account a claimant’s

5 limitations is defective”); Watson v. Astrue, 2010 WL 4269545, *5 (C.D. Cal. Oct. 22, 2010) 6 (finding the ALJ’s RFC determination and hypothetical questions posed to the vocational expert 7 defective when the ALJ did not properly consider a doctor’s findings). In summation, the ALJ 8 did not consider Drs. Eisenhauer and Donohue’s opinion in its entirety or include all the 9 limitations contained therein. Therefore, the Court finds the ultimate disability determination 10 may have changed if the ALJ properly considered Drs. Eisenhauer and Donohue’s opinion. 11 Accordingly, the Court directs the ALJ to reassess Drs. Eisenhauer and Donohue’s opinion on 12 remand. 13 B. Dr. Valette 14 Dr. Valette examined Plaintiff in March 2017 for the DDS. AR 648-652. Dr. Valette

15 opined Plaintiff cannot maintain concentration and attention sufficient to carry out an extensive 16 variety of complex instructions, but can maintain concentration and attention sufficient to carry 17 out simple one and two step instructions. AR 652. The ALJ discussed Dr. Valette’s opinion and 18 gave it some weight, saying: 19 This [opinion] has been accorded some weight, as it is consistent with the finding of his evaluation; however, the longitudinal record establishes that the claimant 20 would have some cognitive and social limitations due to his mental impairments. Nevertheless, the mental status findings and the observations of the claimant 21 suggest that the claimant is not as limited as he alleged.

22 AR 22 (citations omitted). 23 24 1 Plaintiff argues the ALJ failed to recognize or include in the RFC Dr. Valette’s opinion 2 that Plaintiff is limited to carrying out one and two step instructions, nor did she provide any 3 rationale for rejecting the limitation. Dkt. 8, p. 6. The Court agrees. Although the ALJ limited 4 Plaintiff to simple instructions, she did not go far enough, as she failed to discuss Dr. Valette’s

5 opinion that Plaintiff is limited to carrying out one and two step instructions. See Flores, 49 F.3d 6 at 570-571. Without discounting the limitation opined to by Dr. Valette or including it in the 7 RFC, the ALJ committed error by failing to consider significant probative evidence. See id. 8 Accordingly, remand is necessary to allow the ALJ to reconsider the entire record at each step of 9 the sequential evaluation process. 10 II. Whether the ALJ properly considered Plaintiff’s subjective symptom testimony and the lay witness testimony. 11 Plaintiff contends the ALJ failed to give clear and convincing reasons for rejecting 12 Plaintiff’s testimony about his symptoms and limitations, as well as for the lay witness 13 testimony. Dkt. 8, pp. 8-14. The Court concludes the ALJ committed harmful error in assessing 14 the medical opinion evidence and must re-evaluate all the medical evidence on remand. See 15 Section I, supra. Because Plaintiff will be able to present new evidence and new testimony on 16 remand and because the ALJ’s reconsideration of the medical evidence may impact her 17 assessment of Plaintiff’s subjective testimony and of the lay witness testimony, the ALJ must 18 reconsider Plaintiff’s testimony and lay witness testimony on remand. 19 III. Whether an award of benefits is warranted. 20 Plaintiff argues this matter should be remanded with a direction to award benefits. See 21 Dkt. 8, pp. 1-2. The Court may remand a case “either for additional evidence and findings or to 22 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the 23 Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand 24 1 to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 2 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for 3 determining when evidence should be credited and an immediate award of benefits directed[.]” 4 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded

5 where: 6 (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 7 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 8 evidence credited.

9 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 10 The Court has determined, on remand, the ALJ must re-evaluate the medical evidence, Plaintiff’s 11 testimony, and the lay witness testimony. See Sections I and II, supra. Therefore, there are 12 outstanding issues which must be resolved and remand for further administrative proceedings is 13 appropriate. 14 CONCLUSION 15 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 16 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 17 this matter is remanded for further administrative proceedings in accordance with the findings 18 contained herein. 19 Dated this 23rd day of March, 2020. 20 21 A 22 David W. Christel United States Magistrate Judge 23 24