Kane v. Colvin, 2:13-cv-01731

2:13-cv-01731 | W.D. Wash. | Nov 25, 2014

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE LINDA M KANE, CASE NO. C13-1731 MJP Plaintiff, ORDER ON REPORT AND RECOMMENDATION v. CAROLYN COLVIN, Defendant. THE COURT, after careful consideration of the Honorable Magistrate Judge John L. Weinberg‟s Report and Recommendation (Dkt. No. 21), Plaintiff Linda M. Kane‟s Objections to Report and Recommendation (Dkt. No. 22), and Defendant Carolyn W. Colvin‟s Response to Plaintiff‟s Objections (Dkt. No. 23), ADOPTS the Report and Recommendation as to Plaintiff‟s second, third, and fourth issues, and DECLINES TO ADOPT the Report and Recommendation as to Plaintiff‟s first issue. Finding legal error in the weight accorded to the opinion of treating physician Timothy Burner by the ALJ, the Court REVERSES the Commissioner‟s decision and REMANDS the case for further proceedings consistent with this opinion.

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 2 of 8 Background Plaintiff‟s Objections raises three issues: (1) whether proper weight was given to treating physician Timothy Burner‟s opinion; (2) whether the opinion of Cheryl Hart, Psy. D., was properly considered; and (3) whether the finding that Plaintiff had past relevant work as a bookkeeper was correct. (Dkt. No. 22 at 2.) Plaintiff raises a fourth issue at step five, but this was not reached by Judge Weinberg‟s Report and Recommendation because the ALJ‟s step four finding was affirmed. (Id.) Plaintiff now asks the Court to decline to adopt the Report and Recommendation and to remand the case for further consideration. (Id. at 10.)

Discussion I. Legal Standard Under Federal Rule of Civil Procedure 72, the district judge must resolve de novo any

part of the Magistrate Judge‟s Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); See also 28 U.S.C. § 636(b)(1).

II. Whether ALJ gave sufficient reason for rejecting opinion of Timothy Burner The Court finds the ALJ erred by giving “little weight” to the opinion of treating

physician Timothy Burner without legitimate reasoning supported by substantial evidence in the record. The Court finds the error was not harmless because it was significant to the ALJ‟s ultimate disability determination, and therefore REVERSES the determination and REMANDS the case to the Social Security Administration for further proceedings consistent with this order.

A. Evidence in the record An ALJ may not reject a treating physician‟s opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625" date_filed="2007-07-16" court="9th Cir." case_name="Orn v. Astrue">495 F.3d 625, Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 3 of 8 632-33 (9th Cir. 2007). The ALJ gave “little weight” to Dr. Burner‟s opinion because Dr. Burner did not attach any medical evidence or narrative statement to explain his opinion, and because the ALJ found his treatment notes inconsistent with his disability opinion. (Dkt. No. 21 at 7-8.)

The Court agrees with Judge Weinberg that, contrary to the ALJ‟s determination, the record contains medical evidence which Dr. Burner relied on, some of which is cited to by the ALJ, and that nothing in Dr. Burner‟s treatment records directly contradicts the opinions he expressed on the disability forms. (Dkt. No. 21 at 7-8.) The Court agrees with Plaintiff, however, that Dr. Burner‟s opinion contained narrative statements which explain his opinions. Dr. Burner states, for example, that “pain and weakness both arms from scar tissue from prior infections, prior ulnar nerve damage,” would affect the amount of weight Plaintiff could lift. (Dkt. No. 14-8 at 109.) This was not accounted for by the ALJ. Dr. Burner also explains that scar tissue and contracture in Plaintiff‟s arms affect her reaching, handling, fingering, feeling, and pushing/pulling abilities. (Id. at 111-12.) This is also not discussed by the ALJ‟s opinion.

The ALJ then found that Dr. Burner‟s 2011 disability opinion was not consistent with his own medical records because there is no previous mention of ulnar nerve damage or of knee pain. (Dkt. No. 14-2 at 30.) The ALJ concluded that because there is no explanation for this discrepancy, Dr. Burner‟s opinion was entitled to “little weight.” (Id.) However, earlier in the ALJ‟s opinion, the ALJ cites to a 2003 diagnosis by Dr. Burner of tendonitis in Plaintiff‟s knee. (Dkt. No. 14-2 at 28.) This tendonitis is referenced by Dr. Burner in his August 2011 opinion form. (Dkt. No. 14-8 at 111.) The ALJ‟s determination that there is “no mention of knee pain” in the record is not supported by substantial evidence, as demonstrated by this internal inconsistency within the ALJ‟s own opinion.

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 4 of 8 While there is no specific ulnar nerve damage diagnosis in the record, Dr. Burner states that he has been treating Plaintiff‟s arms since 2000, and mentions several issues with Plaintiff‟s arms relevant to a disability determination regarding Plaintiff‟s ability to lift, push, pull etc. (Dkt. No. 14-8 at 109.) Dr. Burner‟s lengthy history of treatment of Plaintiff‟s arms, and the insight that affords, is exactly why the Social Security Administration has instructed that greater weight be given to a treating physician‟s opinion. The ALJ‟s decision to discount the opinion of a treating physician based only on one reference to ulnar nerve damage when that physician has treated Plaintiff‟s arms for more than a decade is not grounded in legitimate reasoning supported by substantial evidence in the record.

B. Harmless error The Court finds legal error in the ALJ‟s determination of the weight to be afforded to Dr. Burner‟s opinion and concludes that the error was not harmless. The opinions of treating physicians are entitled to more weight because they are “most able to provide a detailed, longitudinal picture of [an individual‟s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations…” 20 C.F.R. § 404.1527(c)(2). For this reason, an ALJ may not reject a treating physician‟s opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn, 495 F.3d 625" date_filed="2007-07-16" court="9th Cir." case_name="Orn v. Astrue">495 F.3d at 632-33.

Nevertheless, the Ninth Circuit has “recognized that harmless error principles apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104" date_filed="2012-04-02" court="9th Cir." case_name="Molina v. Astrue">674 F.3d 1104, 1115 (9th Cir. 2012). The court noted that “in each case we look at the record as a whole to determine [if] the error alters the outcome of the case.” Id. The court also noted that the Ninth Circuit has “adhered to the

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 5 of 8 general principle that an ALJ‟s error is harmless where it is „inconsequential to the ultimate nondisability determination.‟” Id. The Court agrees with Judge Weinberg, and Plaintiff, that the “ALJ‟s choice between [Dr. Burner‟s opinion and that of the nontreating physicians] is of significance to the result in this case.” (Dkt. No. 21 at 7.) The ALJ found that the condition of Plaintiff‟s arms was not a severe limitation because her arms were “healing well” by September 2009, and there was “no objective evidence that the claimant‟s arm infections and skin grafts have caused more than a minimal limitation in the claimant‟s ability to perform basic work activities.” (Dkt. No. 14-2 at 24.) Dr. Burner provides this objective medical evidence, finding in March and August of 2011 that Plaintiff‟s arms had not healed as well as may have been expected in 2008-2009 and that their condition limited her ability to work. The ALJ‟s decision not to credit the relevant medical evidence was harmful.

The Court finds this error especially significant in light of the ALJ‟s mistake regarding the date on which Plaintiff last used drugs. The ALJ misunderstood Plaintiff‟s testimony at the hearing, thinking that Plaintiff claimed to have stopped using drugs in December 2009. (Dkt. No. 14-2 at 29.) Plaintiff testified at the October 2011 hearing that she had last used drugs “last December,” which would have been December 2010, not December 2009. (Dkt. No. 14-2 at 71.) Plaintiff‟s testimony is supported by monthly drug screenings, which tested positive for drug use through December 2010 but tested negative beginning in January 2011. (Dkt. No. 21 at 5.) These dates are significant because Dr. Burner‟s March and August 2011 opinions were based on Plaintiff‟s condition after she had stopped using drugs, and are the best evidence of Plaintiff‟s condition, including the healing status of arm grafts, after she stopped using drugs. The 2011 opinions are far more relevant in this regard than 2008 and 2009 opinions which note healing and

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 6 of 8 continued improvement because improvement in 2008 and 2009 (when Plaintiff was still using drugs) does not guarantee results in 2011 and thereafter. The Court finds the ALJ erred in not affording proper weight to the opinion of treating physician Timothy Burner, and the error was harmful because it was significant to the ultimate disability determination. Therefore, the Court REVERSES the Commissioner‟s final decision and REMANDS the case for further proceedings in accordance with this order.

III. Whether the opinion of Cheryl Hart was properly considered The Court finds the ALJ did not err in considering the opinion of Cheryl Hart. Doctor Hart opined that Plaintiff was “able to maintain CPP and understand, remember

and execute 3-step tasks. She may have intermittent challenges to CPP due to intoxication, withdrawal, or other substance-related issues.” (Dkt. No. 22 at 7.) Plaintiff argues that this opinion means that Plaintiff is limited to three-step tasks, and that the ALJ did not give a reason for rejecting this opinion. (Id.) The Court agrees with Judge Weinberg that it is not clear from Dr. Hart‟s opinion that Plaintiff could perform three-step tasks but nothing more, as Plaintiff argues.

Judge Weinberg further found that Dr. Hart‟s opinion reflected Plaintiff‟s capabilities during a period of heavy drug use, and that nothing in the report suggests Dr. Hart would find Plaintiff so limited when she stopped abusing drugs. (Dkt. No. 21 at 9.) The Court agrees.

The Court finds Plaintiff‟s arguments unsupported by the record. (Dkt. No. 21 at 9.) The ALJ properly considered Dr. Hart‟s opinion and drew appropriate conclusions from it. The Court therefore ADOPTS the Report and Recommendation as to this issue.

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 7 of 8 IV. Whether Plaintiff was correctly found to have past relevant work as bookkeeper The Court finds the ALJ did not err in finding Plaintiff had past relevant work as a bookkeeper. There is conflicting evidence in the record about Plaintiff‟s past work as a bookkeeper. A computer generated earnings statement shows no earnings since 1985. (Dkt. No. 21 at 10.) However, Plaintiff herself indicated during interviews that she was working as a bookkeeper full- time until 1999. (Id.) At the hearing before the ALJ, Plaintiff testified that she worked as a bookkeeper until she was 45 years old, which would have been 2002. (Id.)

Plaintiff argues the ALJ erred by finding that Plaintiff had past relevant work as a bookkeeper because the ALJ did not explicitly reconcile this conflicting evidence. (Dkt. No. 22 at 8-9.) The Court agrees with Judge Weinberg that the ALJ‟s finding that Plaintiff had past relevant work as a bookkeeper is supported by substantial evidence in the record, and consequently ADOPTS the Report and Recommendation as to this issue.

Conclusion The Court finds legal error in the ALJ‟s decision to afford “little weight” to the opinion of treating physician Timothy Burner, a decision that was not based on legitimate reasoning and was not supported by substantial evidence in the record. Although the Court has not found legal error in the ALJ‟s weighing of other evidence, the weight of the evidence as a whole may be different on remand. Therefore, on remand, the ALJ should review Plaintiff‟s case de novo.

The Court hereby ADOPTS the Report and Recommendation of the Honorable Magistrate Judge John L. Weinberg as to Plaintiff‟s second, third, and fourth issues but DECLINES TO ADOPT the Report and Recommendation as to Plaintiff‟s first issue, the weight accorded to Timothy Burner‟s opinion. The Court REVERSES the Commissioner‟s final

Case 2:13-cv-01731-MJP Document 24 Filed 11/25/14 Page 8 of 8 decision and REMANDS the case to the Social Security Administration for further proceedings consistent with this order. The clerk is ordered to provide copies of this order to all counsel. Dated this 25th day of November, 2014.

A

Marsha J. Pechman Chief United States District Judge