Dellinger v. Colvin, No. 2:2015cv00223 - Document 21 (E.D. Wash. 2016)
Court Description: ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT. The Report and Recommendation is rejected and Plaintiffs Motion for Summary Judgment ECF No. 12 is GRANTED. Defendants Motion for Summary Judgment ECF No. 13 is DENIED. Pursuant to sentence four of 42 U.S.C. § 405(g), this action is REVERSED and REMANDED to the Commissioner for further proceedings consistent with this Order. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Dellinger v. Colvin Doc. 21 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SONJA HALL DELLINGER, NO: 2:15-CV-0223-TOR Plaintiff, 8 9 10 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Commissioner of Social Security, et al., 11 Defendants. 12 13 BEFORE THE COURT is a Report and Recommendation issued by 14 Magistrate Judge Dimke (ECF No. 16), which recommends this Court grant 15 Defendant’s Motion for Summary Judgment (ECF No. 13) and deny Plaintiff’s 16 Motion for Summary Judgment (ECF No. 12). On August 9, 2015 Plaintiff filed 17 objections to the R&R. ECF No. 18. The Court has reviewed the R&R, the 18 briefing and the record and files herein, and is fully informed. 19 20 For the reasons stated below, this Court denies Defendant’s Motion for Summary Judgment, and grants Plaintiff’s Motion for Summary Judgment. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 BACKGROUND 2 Plaintiff applied for disability insurance under the Social Security Act in 3 August 2012. In January 2014, the ALJ issued a written decision denying 4 Plaintiff’s applications for benefits, which decision became the Commissioner’s 5 final decision in June 2015. Plaintiff appealed to this Court and her case was 6 assigned to a Magistrate Judge. The Magistrate Judge issued an R&R on July 25, 7 2016. 8 9 10 In response to the R&R, Plaintiff raises the following objections: (1) the ALJ improperly rejected the opinion of Plaintiff’s treating physician; and (2) the ALJ made an improper adverse credibility finding. ECF No. 18. 11 STANDARD OF REVIEW 12 Pursuant to Federal Rule of Civil Procedure 72, the district court “must 13 determine de novo any part of the magistrate judge’s disposition that has been 14 properly objected to” and “may accept, reject, or modify the recommended 15 disposition.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C). 16 17 DISCUSSION While Plaintiff raises multiple objections for this Court’s review, the Court 18 concludes the ALJ erred in failing to properly evaluate the opinion of Plaintiff’s 19 treating physician, and therefore rejects the R&R and remands the case to the 20 Commissioner for further proceedings. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 A. Evaluation of Dr. Ouellette’s Opinion Plaintiff faults the ALJ for failing to provide sufficient reasoning for 3 rejecting the opinion of Dr. Ouellette, her treating physician, and argues the R&R’s 4 “attempt to salvage the ALJ’s decision amounted to an impermissible post-hoc 5 rationalization.” ECF No. 18 at 5. 6 A treating physician’s opinions are entitled to substantial weight in social 7 security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 8 (9th Cir. 2009). If a treating or examining physician’s opinion is uncontradicted, 9 an ALJ may reject it only by offering “clear and convincing reasons that are 10 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 11 Cir. 2005). “However, the ALJ need not accept the opinion of any physician, 12 including a treating physician, if that opinion is brief, conclusory and inadequately 13 supported by clinical findings.” Bray, 554 F.3d at 1228 (quotation and citation 14 omitted). 15 Even if a treating physician’s opinion is contradicted by another physician, 16 the ALJ may not simply disregard it, and is required to consider factors set out in 17 20 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to afford the 18 treating physician’s medical opinion. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th 19 Cir. 2014) (citing Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007)). “These 20 factors include the ‘length of the treatment relationship and the frequency of ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 examination’ by the treating physicians, the ‘nature and extent of the treatment 2 relationship’ between the patient and the treating physician, the ‘supportability’ of 3 the physician’s opinion with medical evidence and the consistency of the 4 physician’s opinion with the record as a whole.” Id. (quoting 20 C.F.R. § 5 404.1527(c)(2)-(6)). “In many cases, a treating source’s medical opinion will be 6 entitled to the greatest weight and should be adopted, even if it does not meet the 7 test for controlling weight.” Id. (quoting Orn, 495 F.3d at 631). 8 Similarly, “an ALJ may not simply reject a treating physician’s opinions on 9 the ultimate issue of disability.” Id. (citing Holohan v. Massanari, 246 F.3d 1195, 10 1202-03 (9th Cir. 2001)). An ALJ may only reject a treating physician’s 11 contradicted opinions by “providing specific and legitimate reasons that are 12 supported by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. 13 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). “An ALJ can satisfy the ‘substantial 14 evidence’ requirement by ‘setting out a detailed and thorough summary of the facts 15 and conflicting clinical evidence, stating his interpretation thereof, and making 16 findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting 17 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 18 Here, Dr. Ouellette opined that Plaintiff “does appear capable of some 19 sedentary work, as long as there is no lifting greater than 10 pounds, no lifting at 20 all over shoulder height, and as long as she can change positions frequently as ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 needed throughout the day.” Tr. 428. Moreover, Dr. Ouellette disagreed with the 2 physicians who examined Plaintiff in connection with her labor and industry 3 claims by opining she needed additional treatment. See Tr. 427; see also Tr. 248- 4 59 (findings of Drs. James and Furrer). 5 In regards to Dr. Ouellette’s opinion, the ALJ found as follows: 6 I give little weight to the opinion of Dr. Tracy Ouelette disagreeing with prior IMEs and finding that the claimant is not at maximum physical improvement (20F). Dr. Ouelette does not have a treating relationship with the claimant, and his opinion is highly speculative. Notably, he recommend (sic) continued physical therapy to improve the claimant’s functioning, however, the medical records indicate that she has consistently participated in physical therapy and though she initially saw great improvement, ongoing efforts are aimed at maintaining her functioning and not expected to greatly improve her functioning. It is worth noting that Dr. Ouelette declined to offer the claimant a disabled parking permit as he believes that walking and exercise would be good for her (20F/3). Most importantly, Dr. Ouelette does not provide his own functional assessment of the claimant, but simply states that he disagrees with the IME finding. Accordingly, his opinion is of little help in assessing the claimant’s residual functional capacity in this case. 7 8 9 10 11 12 13 14 15 Tr. 24. 16 Dr. Ouellette’s opinion was contradicted by other physicians, see Tr. 243-45, 17 and thus, the ALJ need only provide specific and legitimate reasons to discount Dr. 18 Oullette’s opinion. But the ALJ erred in finding Dr. Ouellette was not a treating 19 physician and that her opinion was too speculative. The ALJ did not provide 20 legitimate reasons for rejecting Dr. Ouellette’s opinion. For instance, the ALJ ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 discounted Dr. Ouellette’s opinion because she “does not provide [her] own 2 functional assessment of the claimant, but simply states that [she] disagrees with 3 the IME finding.” Tr. 24. Plaintiff contends this finding is factually incorrect and 4 points to Dr. Ouellette’s functional assessment of Plaintiff. ECF No. 18 at 2-5 5 (citing 425-29). 6 The R&R justifies why the ALJ discounted Dr. Ouellette’s opinion, ECF 7 No. 16 at 20-21, but overlooks that the ALJ did not actually provide those 8 justifications. Rather, the ALJ failed to acknowledge Dr. Ouellette’s assessment 9 and treatment notes in their entirety and incorrectly found that she “simply states 10 [she] disagrees with the IME finding.” Such a statement by the ALJ ignores the 11 assessments contained within Dr. Ouellette’s treatment notes, and thus, the ALJ’s 12 reason is not supported by substantial evidence on the record. Importantly, 13 “[w]here an ALJ does not explicitly reject a medical opinion or set forth specific, 14 legitimate reasons for crediting one medical opinion over another, he errs.” 15 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “In other words, an ALJ 16 errs when he rejects a medical opinion or assigns it little weight while doing 17 nothing more than ignoring it[.]” Id. at 1012-13. The Court finds the ALJ failed to 18 consider or properly reject Dr. Ouellette’s opinion and a remand is required. 19 // 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 B. Remedy The ALJ’s error was not harmless. The medical opinions of record must be 3 considered and properly evaluated by the ALJ. When an ALJ’s denial is based 4 upon legal error or not supported by the record, the usual course is for the Court to 5 remand for further proceedings or explanations. See Hill v. Astrue, 698 F.3d 1153, 6 1162 (9th Cir. 2012). 7 Remand is appropriate “where there are outstanding issues that must be 8 resolved before a determination can be made, and it is not clear from the record 9 that the ALJ would be required to find the claimant disabled if all the evidence 10 were properly evaluated.” Hill, 698 F.3d at 1162. In this case, there remains 11 outstanding issues to resolve. For instance, whether, when the evidence is properly 12 evaluated, Plaintiff’s limitations impair her ability to perform basic work activities, 13 and the ALJ must consider the limitations imposed by Plaintiff’s impairments in 14 assessing her RFC. In making these determinations, the Commissioner must 15 properly evaluate the opinions of the examining and treating medical experts. 16 Whether a proper evaluation of the medical opinions can be reconciled with the 17 ALJ’s existing adverse credibility determination or any of the other remaining 18 issues in the case is for the Commissioner to decide in the first instance. 19 Upon remand, the ALJ should further develop the record and issue a new 20 decision. The ALJ should reevaluate all of Plaintiff’s impairments; all medical ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 source opinions; Plaintiff’s credibility; Plaintiff’s RFC; findings at step three, and 2 if necessary Plaintiff’s ability to perform work at steps four and five. Plaintiff may 3 present new arguments and evidence and the ALJ may conduct further proceedings 4 as necessary. 5 ACCORDINGLY, IT IS ORDERED: 6 7 1. The R&R is rejected and Plaintiff’s Motion for Summary Judgment (ECF No. 12) is GRANTED. 8 2. Defendant’s Motion for Summary Judgment (ECF No. 13) is DENIED. 9 3. Pursuant to sentence four of 42 U.S.C. § 405(g), this action is 10 REVERSED and REMANDED to the Commissioner for further 11 proceedings consistent with this Order. 12 13 14 The District Court Executive is directed to enter this Order and Judgment accordingly, provide copies to the parties, and CLOSE this case. DATED September 2, 2016. 15 16 THOMAS O. RICE Chief United States District Judge 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8
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