Van Ness v. Colvin, CASE NO. 12-cv-05967 JRC

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtJ. Richard Creatura
Docket NumberCASE NO. 12-cv-05967 JRC
PartiesDARLA VAN NESS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
Decision Date12 December 2013

DARLA VAN NESS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

CASE NO. 12-cv-05967 JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Dated: December 12, 2013


ORDER ON PLAINTIFF'S
COMPLAINT

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed (see ECF Nos. 14, 19, 20).

The ALJ's failure to provide specific and legitimate reasons for rejecting the opinions of two treating doctors requires a reversal of this case for further consideration.

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BACKGROUND

Plaintiff, DARLA VAN NESS, was born in August, 1958 and was 45 years old on the alleged date of disability onset of October 23, 2003 (see Tr. 175). Plaintiff worked for the Health Department as a senior office assistant from 1989 until 2003 (Tr. 42). She was in an auto accident in 1995, but returned to work (Tr. 58-59). In February, 2003, she was in another auto accident and returned to work part-time (Tr. 60). Plaintiff resigned in 2005, following more surgeries and time off work, when she was given the choice of resigning or being fired because she could not keep a regular schedule (Tr. 61).

Plaintiff has at least the severe impairments of "degenerative disc disease (thoracic, cervical, and lumbar spine), status post rotator cuff repair, left shoulder tendinitis and chronic pain syndrome (20 CFR 404.1520(c))" (see Tr. 19).

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act (see Tr. 175-76). The application was denied initially and following reconsideration (Tr. 79-83, 89-93). Plaintiff's requested hearing was held before Administrative Law Judge Laura Valente ("the ALJ") on June 20, 2011 (see Tr. 33-67). A supplemental hearing was held on October 4, 2011 (see Tr. 68-78). On October 28, 2011, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see Tr.14-32).

On October 1, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial

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review (Tr. 1-6). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in November, 2012 (see ECF No. 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on January 23, 2013 (see ECF Nos. 11, 12).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) whether or not the ALJ provided legitimate reasons for rejecting the opinions of treating physicians Dr. Newell-Eggert and Dr. Kershisnik; (2) whether or not the ALJ was required to address the medical opinion of treating pain specialist, Dr. Meagher; (3) whether or not the ALJ erred in her Step 2 finding that Ms. VanNess' migraine headaches, hand impairments, and mental impairments were non-severe; (4) whether or not the ALJ was required to consider the side effects of Ms. VanNess' prescribed medication; (5) whether or not the ALJ's reasons for finding Ms. VanNess not credible were legitimate; (6) whether or not the ALJ erred in relying on the testimony of Dr. Lorber; and (7) whether or not this Court should exercise its authority to remand the case for immediate payment of benefits, rather than further administrative proceedings (see ECF No. 14, pp. 2-3).

STANDARD OF REVIEW

Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment "which can be expected to result in death or which has lasted, or can be expected to last for a

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continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes, supra, 881 F.2d at 750).

In addition, the Court must independently determine whether or not "'the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) (citing Moore v.

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Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (collecting cases)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) ("we may not uphold an agency's decision on a ground not actually relied on by the agency") (citing Chenery Corp, supra, 332 U.S. at 196). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d at 1117-1122; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009).

DISCUSSION

(1) Whether or not the ALJ provided legitimate reasons for rejecting the opinions of treating physicians Dr. Newell-Eggert and Dr. Kershisnik.

Dr. Margo K. Newell-Eggert, M.D., is a physical medical and rehabilitation doctor who first saw plaintiff in 1995, and who treated plaintiff from March of 2003 (Tr. 335-37) until at least May of 2006 - over three years (Tr. 280). Dr. Erin Kershisnik, M.D. also saw plaintiff for over two years and appears to be her general physician (see Tr. 388-445). Both physicians concluded during the course of their ongoing treatment that

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plaintiff was unable to carry out the responsibilities of full time employment, largely due to her chronic pain and medication side effects, in addition to depression (see, e.g., Tr. 284-85, 291, 321-22 and 388). For example, Dr. Kershisnik indicated that plaintiff's "chronic pain and medication side effects frequently impair her from even coming in for her medical appointments[, as] she is frequently rescheduling due to pain" (Tr. 388). Dr. Kershisnik added that plaintiff "is complaint with all recommended therapies and takes an active role in her health as evidence by her very rapid return to normal blood sugars after diabetes education and medication" (id.).

The ALJ gave "little weight" to both of these opinions (Tr. 24-25). As to Dr. Newell-Eggert, the ALJ concluded ". . . the objective medical evidence of records including physical exam findings support mostly moderate limitations. In addition, treatment notes show that the claimant's symptoms improved" (Tr. 24). As to Dr. Kershisnik, the ALJ concluded "Dr. Kershisnik's opinion is outside the period at issue. In addition, he cites no objective evidence of physical exam findings to support his opinion" (Tr. 25). This constitutes the totality of the discussion regarding her reason for discounting opinions from both of these treating physicians.

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) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Determining whether or not...

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