United States District Court, W.D. Washington, Tacoma
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. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 8). This matter has been fully briefed ( see ECF Nos. 14, 18, 19).
After considering and reviewing the record, the Court finds that the ALJ's step five finding that Ms. Wright-Grant could perform other work in the national economy was not based on substantial evidence as she failed to elicit testimony from the vocational expert regarding whether or not an individual with Ms. Wright-Grant's residual functional capacity, background and skills could perform said work. As this error is not harmless error, this matter shall be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further administrative proceedings.
SHERRY WRIGHT-GRANT, ("Ms. Wright-Grant"), was born in 1950 and was 56 years old on the alleged date of disability onset of February 17, 2007 ( see Tr. 215-17, 218-21). Ms. Wright-Grant had attended two years of college at the time of her first administrative hearing and had worked at a start-up microbrewery in various positions, including CEO/President until the business was closed (Tr. 73-75). Ms. Wright-Grant's final job was in a craft store where she was injured. Following the accident, Ms. Wright-Grant tried to go back to work doing light duty but was unable to continue and was terminated (Tr. 75-77).
At the time of Ms. Wright-Grant's first hearing (February 10, 2010), Ms. Wright-Grant had at least the severe impairments of "fibromyalgia and chronic lumbar pain (20 CFR 404.1520(c) and 416.920(c))" (Tr. 106).
On January 30, 2008, Ms. Wright-Grant filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act ( see Tr. 215, 218). The applications were denied initially and following reconsideration (Tr. 96-99). Ms. Wright-Grant's requested hearing was held before Administrative Law Judge Marie Palachuk ("the ALJ") on February 10, 2010 ( see Tr. 54-95). On April 9, 2010, the ALJ issued a written decision in which the ALJ concluded that Ms. Wright-Grant was not disabled pursuant to the Social Security Act ( see Tr.100-19). On May 23, 2011, the Appeals Council remanded this matter back to the ALJ (Tr. 120-23). Ms. Wright-Grant died on June 25, 2011 (Tr. 306-09).
A second hearing was held on January 12, 2012 (Tr. 42-53) and on January 27, 2012, the ALJ again found that Ms. Wright-Grant was not disabled pursuant to the Social Security Act ( see Tr. 16-34).
On October 26, 2012, the Appeals Council denied plaintiff's request for review, making the subsequent written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-6). See 20 C.F.R. § 404.981. Plaintiff, Ms. Wright-Grant's mother, on her daughter's behalf, filed a complaint in this Court seeking judicial review of the ALJ's written decision in late December 2012 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on April 1, 2013 ( see ECF Nos. 11, 12).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ committed reversible error by finding Ms. Wright-Grant had transferable skills in cashiering; (2) Whether or not the ALJ committed reversible error by not presenting her RFC to the VE in regards to the three jobs the ALJ found that Ms. Wright-Grant could perform; (3) Whether or not the ALJ committed reversible error by failing to find that Ms. Wright-Grant met grid rule 201.07; (4) Whether or not the ALJ committed reversible error by her failing to consider Ms. Wright-Grant's handling, reaching, fingering, and sitting limitations in her RFC; and (5) Whether or not the ALJ committed reversible error by improperly rejecting Dr. Reinmuth's opinion that Ms. Wright-Grant was incapable of working 40 hours a week ( see ECF No. 14, pp. 1-2).
STANDARD OF REVIEW
A claimant 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 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 ...