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. 7; Consent to Proceed Before a United States Magistrate Judge, ECF No. 10). This matter has been fully briefed ( see ECF Nos. 16, 18, 19).
After considering and reviewing the record, the Court finds that the ALJ erred in his evaluation of the medical evidence. Specifically, he failed to discuss significant probative evidence from plaintiff's speech therapist, which not only affects the ultimate nondisability determination, but also affects the ALJ's analysis of medical opinions that were not credited by the ALJ.
Therefore, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration.
Plaintiff, ALVEDA NELSON, was born in 1964 and was 42 years old on the alleged date of disability onset of September 1, 2007 ( see Tr. 12, 131, 135). Plaintiff completed high school (Tr. 56). Plaintiff has work experience as a maintenance technician and has worked as a food service specialist while in the Army (Tr. 225). Plaintiff was working as a building maintenance repairer when she was injured on the job (Tr. 63, 1322). She later returned to work as a home detailer but was terminated because of too many work absences in order to attend doctor appointments and because she was not able to do all aspects of the job (Tr. 48-49, 57-58).
Plaintiff has at least the severe impairments of "scoliosis of the thoracic spine, degenerative disk disease of the lumbar and cervical spine, mood disorder, and generalized anxiety disorder with panic attacks (20 CFR 404.1520(c) and 416.920(c))" Tr. 14). At the time of the hearing, plaintiff was living in a house with her partner (Tr. 47-48).
On August 17, 2009 plaintiff 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. 131-134, 135-138). The applications were denied initially and following reconsideration (Tr. 74-75, 76-77). Plaintiff's requested hearing was held before Administrative Law Judge Robert Kingsley ("the ALJ") on September 15, 2011 ( see Tr. 39-72). On November 21, 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. 9-32).
On April 25, 2013, 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. 1-6). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in June, 2013 ( see ECF No. 1). Defendant filed the sealed administrative record regarding this matter ("Tr.") on September 9, 2013 ( see ECF Nos. 13, 14).
In plaintiff's Opening Brief, plaintiff contends the following: (1) the ALJ erred by failing to credit fully medical opinions from Dr. Dahmer-White and from Dr. Tognazzini; (2) the ALJ erred by assigning great weight to the opinion of non-examining consultant, Dr. William Lysak; (3) the opinion provided by Dr. Michael Friedman cannot be substantial evidence for rejecting plaintiff's cognitive limitations because his examination is cursory and conflicts with objective evidence provided by plaintiff; (4) the ALJ erred by failing to mention the opinion evidence provided by plaintiff's speech therapist; (5) plaintiff's residual functional capacity ("RFC") erroneously fails to include plaintiff's limitations with respect to fine motor strength; (6) the RFC was not applied properly by the ALJ in his written decision; and (7) the ALJ's step five finding regarding other work that plaintiff could perform is flawed by the ALJ's failure to credit plaintiff's cognitive difficulty in processing and her reduced grip strength and fine motor coordination ( see ECF No. 16, pp. 10-24).
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). 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 ...