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Abel v. Colvin

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

March 5, 2014

RHONDA S. ABEL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

ORDER ON PLAINTIFF'S COMPLAINT

J. RICHARD CREATURA, Magistrate Judge.

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. 3; Consent to Proceed Before a United States Magistrate Judge, ECF No. 4). This matter has been fully briefed ( see ECF Nos. 16, 19, 20).

After considering and reviewing the record, the Court finds that the ALJ erred in failing to consider whether plaintiff meets Listing 12.05C, describing intellectual disability. Because the record demonstrates that she satisfies all three prongs of the listing, the case is reversed and remanded for payment of benefits.

BACKGROUND

Plaintiff, RHONDA S. ABEL, was born in 1966 and was 39 years old on the alleged date of disability onset of June 25, 2006 (Tr. 134, 137). Plaintiff attended special education classes in high school, repeating some grades. She was unable to amass enough credits to graduate and did not obtain a GED (Tr. 224, 416). Her last employment as a dish washer in a restaurant ended about four years prior to the hearing. She worked there for 2-3 years, but was fired for "speaking my mind" (Tr. 431).

The ALJ found that plaintiff has the severe impairments of depression; borderline intellectual functioning; attention deficit hyperactivity disorder; post-traumatic stress disorder; polysubstance dependence, in remission; chronic muscle spasms affecting the low back and right shoulder; right knee pain, status post surgery; and asthma (Tr. 386).

At the time of the second administrative hearing, plaintiff lived alone in a house, and received assistance from a friend in the evenings (Tr. 418).

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits ("DIB") under 42 U.S.C. § 423 and Supplemental Security Income ("SSI") benefits under 42 U.S.C. § 1382(a) of the Social Security Act on February 4, 2008 ( see Tr. 134-39). The applications were denied initially and following reconsideration (Tr. 87-90, 96-99). Plaintiff's requested hearing was held before Administrative Law Judge Larry Kennedy on December 21, 2009 ( see Tr. 32-82). On February 22, 2010, the ALJ issued a written decision concluding that plaintiff was not disabled pursuant to the Social Security Act (Tr. 496-508).

On September 9, 2010, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-5). See 20 C.F.R. § 404.981. Plaintiff appealed the Commissioner's decision to the United States District Court for the Western District of Washington, and on November 1, 2011, U.S. Magistrate Judge Mary Alice Theiler remanded the matter back to the Commissioner for further administrative proceedings (Tr. 519-31; Case No. 3:10-cv-05810-MAT).

On September 10, 2012, Administrative Law Judge Cynthia D. Rosa ("the ALJ"), held a second hearing (Tr. 411-46). The ALJ issued a new decision on September 26, 2012 (Tr. 383-404), finding plaintiff not disabled. This appeal followed.

Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in December 2012 ( see ECF No. 1). Defendant filed the sealed administrative record regarding this matter ("Tr.") on February 15, 2013 ( see ECF Nos. 11, 12).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ erred by finding the plaintiff did not have an impairment that met or equaled a listing; (2) Whether or not the ALJ erred by finding plaintiff was not credible; and (3) Whether or not the ALJ erred by not complying with Social Security ...


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