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5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 DEARLD S., 9 CASE NO. 3:19-CV-5775 – 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 application for disability insurance benefits (“DIB”). Pursuant 16 to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties 17 have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. 18 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 19 erred when he failed to consider the medical opinions of Drs. Jerry Fisher and Richard 20 Rosenbaum. The ALJ’s error is therefore harmful, and this matter is reversed and remanded 21 pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner of the Social Security 22 Administration (“Commissioner”) for further proceedings consistent with this Order. 23
24 1 FACTUAL AND PROCEDURAL HISTORY 2 On June 23, 2016, Plaintiff filed an application for DIB, alleging disability as of February 3 9, 2016. See Dkt. 7, Administrative Record (“AR”) 13. The application was denied upon initial 4 administrative review and on reconsideration. See AR 13. A hearing was held before ALJ
5 Malcolm Ross on December 1, 2017. See AR 13. In a decision dated May 31, 2018, the ALJ 6 determined Plaintiff to be not disabled. See AR 20. Plaintiff’s request for review of the ALJ’s 7 decision was denied by the Appeals Council, making the ALJ’s decision the final decision of the 8 Commissioner. See AR 12; 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; (2) finding Plaintiff’s medically determinable impairments are not 11 severe at Step Two; (3) forming the residual functional capacity (“RFC”); and (4) concluding 12 Plaintiff is not disabled without support of substantial evidence. Dkt. 11. 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 considered the medical opinion evidence.
20 Plaintiff asserts the ALJ failed to properly consider the medical opinion evidence. Dkt. 21 11, pp. 10-13. Notably, Plaintiff argues the ALJ failed to give any consideration to the opinions 22 of Drs. Fisher and Rosenbaum. Dkt. 11, pp. 11-13. 23 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. Lester 3 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 4 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining
5 physician’s opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons 6 that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews 7 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 8 1983)). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts 9 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick 10 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th 11 Cir. 1989)). 12 The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 13 739 F.2d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative 14 evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-571 (9th Cir. 1995) (quoting
15 Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for disregarding 16 [such] evidence.” Id. at 571. Furthermore, an RFC must take into account all of an individual’s 17 limitations. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Thus, 18 an ALJ errs when he provides an incomplete RFC ignoring “significant and probative evidence.” 19 Jones v. Colvin, 2015 WL 71709, at *5 (W.D. Wash. Jan. 6, 2015) (citing Hill v. Astrue, 698 20 F.3d 1153, 1161 (9th Cir. 2012)). 21 Dr. Fisher, one of Plaintiff’s treating physicians, opined Plaintiff is restricted to lifting 50 22 pounds occasionally and 20 pounds frequently with his right hand. AR 1424. He opined Plaintiff 23 should never perform fine or gross manipulation with his left hand and should never raise his left
24 1 arm over shoulder level. AR 1424. Dr. Fisher also opined Plaintiff should never operate a motor 2 vehicle and should be limited to only occasional exposure to working around dangerous 3 equipment. AR 1424. Dr. Fisher’s opinion was corroborated by Dr. Rosenbaum, another one of 4 Plaintiff’s treating physicians. AR 1426. Dr. Rosenbaum also added that because Plaintiff is left
5 handed, his “left arm symptoms interfere with writing or keyboard use.” AR 1426. Both doctors 6 diagnosed Plaintiff with left brachial plexus stretch injury/plexopathy. AR 1424, 1426. Other 7 than briefly quoting one of Dr. Rosenbaum’s exams, the ALJ does not discuss either Dr. 8 Rosenbaum’s or Dr. Fisher’s opinions. See generally AR 17-20. 9 Both opinions indicate Plaintiff has limitations in his ability to perform work and are 10 therefore significant, probative evidence. See Hollingsworth v. Colvin, 2013 WL 3328609 at *2 11 (W.D. Wash. July 1, 2013) (citing 20 C.F.R.
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5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 DEARLD S., 9 CASE NO. 3:19-CV-5775 – 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 application for disability insurance benefits (“DIB”). Pursuant 16 to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties 17 have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2. 18 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 19 erred when he failed to consider the medical opinions of Drs. Jerry Fisher and Richard 20 Rosenbaum. The ALJ’s error is therefore harmful, and this matter is reversed and remanded 21 pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner of the Social Security 22 Administration (“Commissioner”) for further proceedings consistent with this Order. 23
24 1 FACTUAL AND PROCEDURAL HISTORY 2 On June 23, 2016, Plaintiff filed an application for DIB, alleging disability as of February 3 9, 2016. See Dkt. 7, Administrative Record (“AR”) 13. The application was denied upon initial 4 administrative review and on reconsideration. See AR 13. A hearing was held before ALJ
5 Malcolm Ross on December 1, 2017. See AR 13. In a decision dated May 31, 2018, the ALJ 6 determined Plaintiff to be not disabled. See AR 20. Plaintiff’s request for review of the ALJ’s 7 decision was denied by the Appeals Council, making the ALJ’s decision the final decision of the 8 Commissioner. See AR 12; 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; (2) finding Plaintiff’s medically determinable impairments are not 11 severe at Step Two; (3) forming the residual functional capacity (“RFC”); and (4) concluding 12 Plaintiff is not disabled without support of substantial evidence. Dkt. 11. 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 considered the medical opinion evidence.
20 Plaintiff asserts the ALJ failed to properly consider the medical opinion evidence. Dkt. 21 11, pp. 10-13. Notably, Plaintiff argues the ALJ failed to give any consideration to the opinions 22 of Drs. Fisher and Rosenbaum. Dkt. 11, pp. 11-13. 23 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. Lester 3 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 4 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining
5 physician’s opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons 6 that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews 7 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 8 1983)). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts 9 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick 10 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th 11 Cir. 1989)). 12 The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 13 739 F.2d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative 14 evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-571 (9th Cir. 1995) (quoting
15 Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for disregarding 16 [such] evidence.” Id. at 571. Furthermore, an RFC must take into account all of an individual’s 17 limitations. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Thus, 18 an ALJ errs when he provides an incomplete RFC ignoring “significant and probative evidence.” 19 Jones v. Colvin, 2015 WL 71709, at *5 (W.D. Wash. Jan. 6, 2015) (citing Hill v. Astrue, 698 20 F.3d 1153, 1161 (9th Cir. 2012)). 21 Dr. Fisher, one of Plaintiff’s treating physicians, opined Plaintiff is restricted to lifting 50 22 pounds occasionally and 20 pounds frequently with his right hand. AR 1424. He opined Plaintiff 23 should never perform fine or gross manipulation with his left hand and should never raise his left
24 1 arm over shoulder level. AR 1424. Dr. Fisher also opined Plaintiff should never operate a motor 2 vehicle and should be limited to only occasional exposure to working around dangerous 3 equipment. AR 1424. Dr. Fisher’s opinion was corroborated by Dr. Rosenbaum, another one of 4 Plaintiff’s treating physicians. AR 1426. Dr. Rosenbaum also added that because Plaintiff is left
5 handed, his “left arm symptoms interfere with writing or keyboard use.” AR 1426. Both doctors 6 diagnosed Plaintiff with left brachial plexus stretch injury/plexopathy. AR 1424, 1426. Other 7 than briefly quoting one of Dr. Rosenbaum’s exams, the ALJ does not discuss either Dr. 8 Rosenbaum’s or Dr. Fisher’s opinions. See generally AR 17-20. 9 Both opinions indicate Plaintiff has limitations in his ability to perform work and are 10 therefore significant, probative evidence. See Hollingsworth v. Colvin, 2013 WL 3328609 at *2 11 (W.D. Wash. July 1, 2013) (citing 20 C.F.R. § 404.1527(c)(2)) (“[t]he opinion of a treating 12 physician regarding a claimant’s ability to perform work is significant probative evidence”). 13 Thus, the ALJ erred by failing to evaluate the opinions of Drs. Fisher and Rosenbaum. 14 Therefore, the Court concludes the ALJ failed to provide specific, legitimate reasons supported
15 by substantial evidence for dismissing the opinions of Drs. Fisher and Rosenbaum. As such, the 16 ALJ erred. 17 Harmless error principles apply in the Social Security context. Molina, 674 F.3d at 1115. 18 An error is harmless only if it is not prejudicial to the claimant or “inconsequential” to the ALJ’s 19 “ultimate nondisability determination.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 20 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The Ninth Circuit has held “‘a reviewing court 21 cannot consider an error harmless unless it can confidently conclude that no reasonable ALJ, 22 when fully crediting the testimony, could have reached a different disability determination.’” 23 Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout, 454 F.3d at 1055-56). The
24 1 determination as to whether an error is harmless requires a “case-specific application of judgment” 2 by the reviewing court, based on an examination of the record made “‘without regard to errors’ that 3 do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. 4 Sanders, 556 U.S. 396, 407 (2009)).
5 The ALJ’s failure to discuss the opinions of Drs. Fisher and Rosenbaum impacts his 6 analysis at Step Two because these opinions reflect Plaintiff’s ability to work. See 20 C.F.R. § 7 404.1520(c). The ALJ did not conclude Plaintiff’s impairments as opined by Drs. Fisher and 8 Rosenbaum are severe at Step Two. See AR 20. By contrast, both doctors opined Plaintiff’s 9 impairments affect his ability to work. See AR 1424, 1426. Further, there is no indication in 10 either opinion that Plaintiff’s impairments will last less than 12 months. See AR 1424, 1426. As 11 the ALJ failed to discuss significant, probative evidence regarding Plaintiff’s limitations, he 12 erred in finding Plaintiff’s impairments were not severe at Step Two. See Flores, 49 F.3d at 13 570-571. Therefore, the ALJ may have found Plaintiff’s impairments severe at Step Two had 14 the opinions been properly considered. See 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. §
15 423(d)(2)(A). 16 Further, had the ALJ properly considered Drs. Fisher’s and Rosenbaum’s opinions, the 17 RFC and hypothetical questions posed to the vocational expert may have contained additional 18 limitations. For example, both doctors opined Plaintiff should never perform fine or gross 19 manipulation with his left hand and should never raise his left arm over shoulder level. AR 1424, 20 1426. By contrast, the RFC restricted Plaintiff to frequent bilateral fingering. AR 20. Because the 21 ultimate disability determination may have changed with proper consideration of Drs. Fisher’s 22 and Rosenbaum’s opinions, the ALJ’s errors are not harmless. 23
24 1 As the ALJ’s errors in assessing the opinions of Drs. Fisher and Rosenbaum impact 2 multiple parts of the sequential evaluation process, the ALJ is directed to reconsider this entire 3 matter on remand, including Step Two and the medical opinion evidence. 4 CONCLUSION
5 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 6 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 7 this matter is remanded for further administrative proceedings in accordance with the findings 8 contained herein. 9 Dated this 24th day of April, 2020. 10 11 A 12 David W. Christel United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23