Holzberg v. Astrue

• Decision Date: 11 January 2010
• Docket Number: Case No. C09-5029BHS.
• Citation: 679 F. Supp.2d 1249
• Parties: Bobbi L. HOLZBERG, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of Washington

679 F.Supp.2d 1249

Bobbi L. HOLZBERG, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Case No. C09-5029BHS.

United States District Court, W.D. Washington, at Tacoma.

January 11, 2010.

Elie Halpern, Halpern & Oliver, PLLC, Olympia, WA, for Plaintiff.

Brian C. Kipnis, US Attorney's Office, Kathryn A. Miller, Office of General Counsel, Seattle, WA, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION AND REMANDING MATTER

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the Report and Recommendation of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 22). The Court having considered the Report and Recommendation and the remaining record, and no objections by Defendant having been filed, does hereby find and order:

(1) The Court adopts the Report and Recommendation; and

(2) This action is REMANDED to the Commissioner for further administrative proceedings in accordance with the findings contained in the Report and Recommendation.

REPORT AND RECOMMENDATION

KAREN L. STROMBOM, United States Magistrate Judge.

Plaintiff, Bobbi L. Holzberg, has brought this matter for judicial review of the denial of her applications for disability insurance and supplemental security income ("SSI") benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff currently is 48 years old.¹ Tr. 34. She has two years of college education and past work experience as a medical assistant, nursing assistant, baker and checker. Tr. 30, 94, 120, 128, 639.

On November 18, 2004, plaintiff filed applications for disability insurance and SSI benefits, alleging disability as of June 15, 2004, due to fibromyalgia, carpal tunnel, supraventricular arrhythmia, high cholesterol, irritable bowel, and high blood pressure. Tr. 22, 74-76, 93, 563. Her applications were denied initially and on reconsideration. Tr. 22, 34-35, 62, 65, 68, 554, 557-58, 562. A hearing was held before an administrative law judge ("ALJ") on October 23, 2007, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. Tr. 634-71.

On December 11, 2007, the ALJ issued a decision, determining plaintiff to be not disabled, finding specifically in relevant part:

(1) at step one of the sequential disability evaluation process,² plaintiff had not engaged in substantial gainful activity since her alleged onset date of disability;

(2) at step two, plaintiff had "severe" impairments consisting of obesity, fibromyalgia, post traumatic stress disorder ("PTSD"), and diabetes;

(3) at step three, plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of any of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings");

(4) after step three but before step four, plaintiff had the residual functional capacity to perform sedentary work, with certain additional non-exertional limitations;

(5) at step four, plaintiff was unable to perform her past relevant work; and

(6) at step five, plaintiff was capable of performing other jobs existing in significant numbers in the national economy.

Tr. 22-32. Plaintiff's request for review was denied by the Appeals Council on December 3, 2008, making the ALJ's decision the Commissioner's final decision. Tr. 3; 20 C.F.R. § 404.981, § 416.1481.

On January 20, 2009, plaintiff filed a complaint in this Court seeking review of the ALJ's decision. (Dkt. # 1-# 3). The administrative record was filed with the Court on April 13, 2009. (Dkt. #14). Plaintiff argues the ALJ's decision should be reversed and remanded for an award of benefits or, in the alternative, for further administrative proceedings for the following reasons:

(a) the ALJ erred in evaluating the medical evidence in the record;

(b) the ALJ erred in not finding plaintiff's depression to be a severe impairment; the

(c) ALJ erred in assessing plaintiff's credibility;

(d) the ALJ erred in evaluating the lay witness evidence in the record;

(e) the ALJ erred in assessing plaintiff's residual functional capacity; and

(f) the ALJ erred in finding plaintiff capable of performing other work existing in significant numbers in the national economy.

The undersigned agrees the ALJ erred in determining plaintiff to be not disabled, but, for the reasons set forth below, recommends that while the ALJ's decision should be reversed, this matter should be remanded to the Commissioner for further administrative proceedings. Although plaintiff requests oral argument in this matter, the undersigned finds such argument to be unnecessary here.

DISCUSSION

This Court must uphold the Commissioner's determination that plaintiff is not disabled if the Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir.1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir.1985). It is more than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975); Carr v. Sullivan, 772 F.Supp. 522, 524-25 (E.D.Wash.1991). If the evidence admits of more than one rational interpretation, the Court must uphold the Commissioner's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).

I. The ALJ's Evaluation of the Medical Evidence in the Record

The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998). Where the medical evidence in the record is not conclusive, "questions of credibility and resolution of conflicts" are solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, "the ALJ's conclusion must be upheld." Morgan v. Commissioner of the Social Security Administration, 169 F.3d 595, 601 (9th Cir.1999). Determining whether inconsistencies in the medical evidence "are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount" the opinions of medical experts "falls within this responsibility." Id. at 603.

In resolving questions of credibility and conflicts in the evidence, an ALJ's findings "must be supported by specific, cogent reasons." Reddick, 157 F.3d at 725. The ALJ can do this "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. The ALJ also may draw inferences "logically flowing from the evidence." Sample, 694 F.2d at 642. Further, the Court itself may draw "specific and legitimate inferences from the ALJ's opinion." Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.1989).

The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996). Even when a treating or examining physician's opinion is contradicted, that opinion "can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. However, the ALJ "need not discuss all evidence presented" to him or her. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (citation omitted) (emphasis in original). The ALJ must only explain why "significant probative evidence has been rejected." Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir.1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir.1984).

In general, more weight is given to a treating physician's opinion than to the opinions of those who do not treat the claimant. Lester, 81 F.3d at 830. On the other hand, an ALJ need not accept the opinion of a treating physician, "if that opinion is brief, conclusory, and inadequately supported by clinical findings" or "by the record as a whole." Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.2001). An examining physician's opinion is "entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830-31. A non-examining physician's opinion may constitute substantial evidence if "it is consistent with other independent evidence in the record." Id. at 830-31; Tonapetyan, 242 F.3d at 1149.

A. Dr. Lewy

In mid-July 2005, Arthur Lewy, Ph.D., completed a psychiatric review technique form in which he diagnosed plaintiff with mild to moderate major depression, chronic provisional PTSD, and a provisional personality disorder. Tr. 529, 531, 533. In terms of the "B" criteria of Listings 12.04, 12.06 and 12.08,³ Dr. Lewy found these mental impairments resulted in a mild restriction of activities of daily living, moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace, and no episodes of decompensation of extended duration. Tr. 536. Dr. Lewy also found that the evidence in the record did not establish the presence of the "C" criteria for Listing 12.04. Tr.537.

At step three of the sequential disability evaluation process, the ALJ determined in relevant part as follows:

The claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.04, 12.06, or 12.08.

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