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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 RONNIE R., 8 Plaintiff, CASE NO. 2:20-cv-00252-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER'S FINAL DECISION COMMISSIONER OF SOCIAL SECURITY, AND REMANDING FOR FURTHER 11 PROCEEDINGS Defendant. 12
13 Plaintiff appeals the ALJ's decision finding him not disabled. The ALJ found Plaintiff's 14 penetrating chest injury status post clamshell thoracotomy, sleep apnea, depression, anxiety, and 15 post-traumatic stress disorder (PTSD) are severe impairments; Plaintiff has the residual 16 functional capacity (RFC) to perform light work with additional limitations, and Plaintiff has no 17 relevant past work but is not disabled because he can perform jobs in the national economy. Tr. 18 17-26. Plaintiff contends the ALJ erroneously discounted the opinion of Tasmyn Bowes, Psy.D., 19 and improperly according significant weight to the opinions of the non-examining psychologists. 20 Dkt. 22 at 2. As discussed below, the Court REVERSES the Commissioner’s final decision and 21 REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 22 405(g). 23 1 DISCUSSION 2 A. Tasmyn Bowes, Psy.D. 3 Plaintiff argues the ALJ erroneously discounted the opinion of examining psychologist 4 Tasmyn Bowes, Psy.D. Dkt. 22 at 3. Dr. Bowes performed a psychological evaluation of
5 Plaintiff and opined he was markedly limited in “[u]nderstand[ing], remember[ing], and 6 persist[ing] in tasks followed by following detailed instructions” and “[m]aintaining appropriate 7 behavior in a work setting,” and moderately limited in “[p]erforming activities within a schedule, 8 maintain[ing] regular attendance, and be[ing] punctual within customary tolerances without 9 special supervision,” “[l]earning new tasks,” “[a]dapting to changes in a routine work setting,” 10 “[a]sking simple questions or request[ing] assistance,” “[c]ommunicat[ing] and perform[ing] 11 effectively in a work setting,” “[c]omplet[ing] a normal work day and work week without 12 interruptions from psychologically based symptoms,” and “[s]et[ting] realistic goals and 13 plan[ning] independently.” Tr. 235. 14 Dr. Bowes also opined Plaintiff has mild or no limitations regarding his understanding,
15 memory and ability to persist in tasks following short and simple instructions, perform routine 16 tasks without special supervision, and be aware of normal hazards and take precautions. Id. 17 The ALJ found Dr. Bowes' opinion “partially persuasive,” giving weight to "the activities 18 she rated as mild" as "consistent with her examination findings and the longitudinal evidence, as 19 cited in Finding 5." Tr. 24. However, the ALJ rejected Dr. Bowes' opinion that Plaintiff has 20 moderate and marked limitations on the ground they were not supported by the doctor's 21 "examination findings or the longitudinal evidence." Id. The ALJ also rejected Dr. Bowes' 22 opinion about Plaintiff's memory limitations finding it based on Plaintiff's "self-reporting, as the 23 examination does not seemingly reflect memory testing.” Id. Finally, the ALJ implied Dr. 1 Bowes' opinions should be discounted because the doctor "indicated a duration for his assessed 2 limitations of only 6 to 12 months.” Id. 3 The ALJ must provide “clear and convincing reasons that are supported by substantial 4 evidence” to reject the uncontradicted opinion of an examining doctor, and “specific and
5 legitimate reasons that are supported by substantial evidence” to reject the contradicted opinion 6 of an examining doctor. Trevizo v. Berryhill, 841 F.3d 664, 675 (9th Cir. 2017). “The ALJ can 7 meet this burden by setting out a detailed and thorough summary of the facts and conflicting 8 clinical evidence, stating his interpretation thereof, and making findings.” Id. (quoting 9 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 10 The ALJ provided insufficient reasons to reject Dr. Bowes' opinions about Plaintiff's 11 limitations. First, the ALJ's finding the marked and moderate limitations Dr. Bowes assessed is 12 “not supported by her examination findings or the longitudinal evidence," is a conclusory 13 statement that is insufficient to justify an ALJ's rejection of a medical opinion. See Embrey v. 14 Bowen, 849 F.2d 18, 421-22 (418 (9th Cir. 1988) ("To say that medical opinions are not
15 supported by sufficient objective findings or are contrary to the preponderant conclusions 16 mandated by the objective findings does not achieve the level of specificity our prior cases have 17 required.") see also Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“[A]n ALJ errs 18 when he rejects a medical opinion or assigns it little weight while doing nothing more than 19 ignoring it, asserting without explanation that another medical opinion is more persuasive, or 20 criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”). 21 Here, the ALJ rejected Dr. Bowes' opinions regarding Plaintiff's moderate and marked 22 limitations stating in an impermissibly conclusory fashion these findings are "not supported by 23 the doctor's findings and the longitudinal record." The ALJ accordingly failed to provide specific 1 and legitimate reasons supported by substantial evidence to reject this portion of Dr. Bowes' 2 opinion. 3 At most, the ALJ made the observation “Dr. Bowes noted the claimant was cooperative 4 and seemed open and honest in presentation. The mental status examination indicated that the
5 claimant had normal thought process and content, normal orientation and perception, normal 6 fund of knowledge, and normal concentration. She indicated that the claimant’s memory, 7 abstract thought, and insight and judgment were not within normal limits.” Id. But the ALJ 8 provided no explanation why these observations contradict Dr. Bowes' opinions. Furthermore, 9 these observations are not facially inconsistent with Dr. Bowes' opinion. Rather, they focus on 10 Plaintiff's cognition—his concentration, memory, knowledge fund, ability to think abstractly— 11 not his behavioral limitations such as attendance, or ability to maintain appropriate behavior and 12 come to work on time. 13 Thus, because the ALJ offered a conclusion regarding the marked and moderate 14 limitations assessed without setting forth his own rationale and explaining why the ALJ's
15 conclusions rather than Dr. Bowes' are correct, the ALJ erred. 16 Second, the Court notes the ALJ provided more specificity in rejecting Dr. Bowes' 17 opinion regarding Plaintiff's memory. The ALJ rejected the opinion on the grounds the opinion 18 "appears to be based on his self-reporting, as the examination does not seemingly reflect memory 19 testing." The Court need not resolve whether the ALJ's rationale is valid. Even assuming it is not 20 and the ALJ erred, the error is harmless. Dr. Bowes opined Plaintiff is markedly limited in his 21 ability to remember and persist in following detailed instructions. Tr. 235. The ALJ, however, 22 did not find Plaintiff could remember and persist in following detailed instructions. Rather, 23 consistent with Dr. Bowes' opinion Plaintiff is mildly or not impaired in his ability to understand, 1 remembers and persist in tasks following very short and simple instructions, the ALJ fashioned a 2 RFC limiting Plaintiff to "simple, routine instructions consistent with SVP1-2 jobs." Tr. 20.
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 RONNIE R., 8 Plaintiff, CASE NO. 2:20-cv-00252-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER'S FINAL DECISION COMMISSIONER OF SOCIAL SECURITY, AND REMANDING FOR FURTHER 11 PROCEEDINGS Defendant. 12
13 Plaintiff appeals the ALJ's decision finding him not disabled. The ALJ found Plaintiff's 14 penetrating chest injury status post clamshell thoracotomy, sleep apnea, depression, anxiety, and 15 post-traumatic stress disorder (PTSD) are severe impairments; Plaintiff has the residual 16 functional capacity (RFC) to perform light work with additional limitations, and Plaintiff has no 17 relevant past work but is not disabled because he can perform jobs in the national economy. Tr. 18 17-26. Plaintiff contends the ALJ erroneously discounted the opinion of Tasmyn Bowes, Psy.D., 19 and improperly according significant weight to the opinions of the non-examining psychologists. 20 Dkt. 22 at 2. As discussed below, the Court REVERSES the Commissioner’s final decision and 21 REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 22 405(g). 23 1 DISCUSSION 2 A. Tasmyn Bowes, Psy.D. 3 Plaintiff argues the ALJ erroneously discounted the opinion of examining psychologist 4 Tasmyn Bowes, Psy.D. Dkt. 22 at 3. Dr. Bowes performed a psychological evaluation of
5 Plaintiff and opined he was markedly limited in “[u]nderstand[ing], remember[ing], and 6 persist[ing] in tasks followed by following detailed instructions” and “[m]aintaining appropriate 7 behavior in a work setting,” and moderately limited in “[p]erforming activities within a schedule, 8 maintain[ing] regular attendance, and be[ing] punctual within customary tolerances without 9 special supervision,” “[l]earning new tasks,” “[a]dapting to changes in a routine work setting,” 10 “[a]sking simple questions or request[ing] assistance,” “[c]ommunicat[ing] and perform[ing] 11 effectively in a work setting,” “[c]omplet[ing] a normal work day and work week without 12 interruptions from psychologically based symptoms,” and “[s]et[ting] realistic goals and 13 plan[ning] independently.” Tr. 235. 14 Dr. Bowes also opined Plaintiff has mild or no limitations regarding his understanding,
15 memory and ability to persist in tasks following short and simple instructions, perform routine 16 tasks without special supervision, and be aware of normal hazards and take precautions. Id. 17 The ALJ found Dr. Bowes' opinion “partially persuasive,” giving weight to "the activities 18 she rated as mild" as "consistent with her examination findings and the longitudinal evidence, as 19 cited in Finding 5." Tr. 24. However, the ALJ rejected Dr. Bowes' opinion that Plaintiff has 20 moderate and marked limitations on the ground they were not supported by the doctor's 21 "examination findings or the longitudinal evidence." Id. The ALJ also rejected Dr. Bowes' 22 opinion about Plaintiff's memory limitations finding it based on Plaintiff's "self-reporting, as the 23 examination does not seemingly reflect memory testing.” Id. Finally, the ALJ implied Dr. 1 Bowes' opinions should be discounted because the doctor "indicated a duration for his assessed 2 limitations of only 6 to 12 months.” Id. 3 The ALJ must provide “clear and convincing reasons that are supported by substantial 4 evidence” to reject the uncontradicted opinion of an examining doctor, and “specific and
5 legitimate reasons that are supported by substantial evidence” to reject the contradicted opinion 6 of an examining doctor. Trevizo v. Berryhill, 841 F.3d 664, 675 (9th Cir. 2017). “The ALJ can 7 meet this burden by setting out a detailed and thorough summary of the facts and conflicting 8 clinical evidence, stating his interpretation thereof, and making findings.” Id. (quoting 9 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 10 The ALJ provided insufficient reasons to reject Dr. Bowes' opinions about Plaintiff's 11 limitations. First, the ALJ's finding the marked and moderate limitations Dr. Bowes assessed is 12 “not supported by her examination findings or the longitudinal evidence," is a conclusory 13 statement that is insufficient to justify an ALJ's rejection of a medical opinion. See Embrey v. 14 Bowen, 849 F.2d 18, 421-22 (418 (9th Cir. 1988) ("To say that medical opinions are not
15 supported by sufficient objective findings or are contrary to the preponderant conclusions 16 mandated by the objective findings does not achieve the level of specificity our prior cases have 17 required.") see also Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“[A]n ALJ errs 18 when he rejects a medical opinion or assigns it little weight while doing nothing more than 19 ignoring it, asserting without explanation that another medical opinion is more persuasive, or 20 criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”). 21 Here, the ALJ rejected Dr. Bowes' opinions regarding Plaintiff's moderate and marked 22 limitations stating in an impermissibly conclusory fashion these findings are "not supported by 23 the doctor's findings and the longitudinal record." The ALJ accordingly failed to provide specific 1 and legitimate reasons supported by substantial evidence to reject this portion of Dr. Bowes' 2 opinion. 3 At most, the ALJ made the observation “Dr. Bowes noted the claimant was cooperative 4 and seemed open and honest in presentation. The mental status examination indicated that the
5 claimant had normal thought process and content, normal orientation and perception, normal 6 fund of knowledge, and normal concentration. She indicated that the claimant’s memory, 7 abstract thought, and insight and judgment were not within normal limits.” Id. But the ALJ 8 provided no explanation why these observations contradict Dr. Bowes' opinions. Furthermore, 9 these observations are not facially inconsistent with Dr. Bowes' opinion. Rather, they focus on 10 Plaintiff's cognition—his concentration, memory, knowledge fund, ability to think abstractly— 11 not his behavioral limitations such as attendance, or ability to maintain appropriate behavior and 12 come to work on time. 13 Thus, because the ALJ offered a conclusion regarding the marked and moderate 14 limitations assessed without setting forth his own rationale and explaining why the ALJ's
15 conclusions rather than Dr. Bowes' are correct, the ALJ erred. 16 Second, the Court notes the ALJ provided more specificity in rejecting Dr. Bowes' 17 opinion regarding Plaintiff's memory. The ALJ rejected the opinion on the grounds the opinion 18 "appears to be based on his self-reporting, as the examination does not seemingly reflect memory 19 testing." The Court need not resolve whether the ALJ's rationale is valid. Even assuming it is not 20 and the ALJ erred, the error is harmless. Dr. Bowes opined Plaintiff is markedly limited in his 21 ability to remember and persist in following detailed instructions. Tr. 235. The ALJ, however, 22 did not find Plaintiff could remember and persist in following detailed instructions. Rather, 23 consistent with Dr. Bowes' opinion Plaintiff is mildly or not impaired in his ability to understand, 1 remembers and persist in tasks following very short and simple instructions, the ALJ fashioned a 2 RFC limiting Plaintiff to "simple, routine instructions consistent with SVP1-2 jobs." Tr. 20. The 3 time needed to learn a SVP1 job is no more than a short demonstration and a SVP2 job is up to 4 and including one month. 20 C.F.R. § 404.1568(a). The ALJ found Plaintiff can perform work as
5 a produce sorter, grain picker, or cleaner, three unskilled positions that involve simple work and 6 which require little or no judgment. 20 C.F.R. § 416.968(a). Thus, the ALJ did not commit 7 harmful error regarding Dr. Bowes' opinion about Plaintiff's memory. 8 And third, the ALJ discounted Dr. Bowes' opinion noting the doctor "indicated a duration 9 for his assessed limitations of only 6 to 12 months. Disability, in part, requires a medically 10 determinable impairment which “can be expected to last for a continuous period of not less than 11 12 months. 42 U.S.C. § 423(d)(1)(A); See also SSR 82-52. Here, Dr. Bowes did not opine 12 Plaintiff's mental limitations would last less than 12 months, and the record shows Plaintiff 13 continued to receive mental health treatment, and continued to report mental health symptoms 14 more than a year after Dr. Bowes performed her evaluation. See e.g. Tr. 326-29. Hence
15 substantial evidence does not support the ALJ's implication Plaintiff's limitations are not 16 disabling because they would last less than twelve months. 17 In sum, apart from memory limitations, the ALJ erred in rejecting Dr. Bowes’ opinions 18 regarding Plaintiff's other moderate and marked limitations. The error was harmful because it 19 resulted in a RFC determination that failed to account for all limitations assessed. 20 B. Vincent Gollogly, Ph.D., and Christmas Covell, Ph.D.
21 Plaintiff also argues the ALJ erroneously accorded great weight to the opinions of 22 reviewing doctors Gollogly and Covell. Because the ALJ erred in rejecting Dr. Bowes' opinions 23 without finding Dr. Bowes' opinions were contradicted by the reviewing doctors' opinions, the 1 Court need not resolve the argument at this juncture. This is because on remand, the ALJ must 2 necessarily reweigh the reviewing doctors' opinions in light of his reassessment of Dr. Bowes' 3 opinion and any record development deemed necessary. 4 CONCLUSION
5 For the foregoing reasons, the Court REVERSES the Commissioner’s final decision and 6 REMANDS the case for further administrative proceedings under sentence four of 42 U.S.C. § 7 405(g). On remand, the ALJ shall reassess Dr. Bowes' opinions, develop the record and 8 redetermine the RFC as needed and proceed to the remaining steps as appropriate. 9 DATED this 25th day of January, 2021. 10 A 11 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 12
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