United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see ECF Nos. 12, 13, 14).
After considering and reviewing the record, the Court finds that the ALJ improperly dismissed medical evidence that showed plaintiff's physical and psychological symptoms and limitations, including difficulty maintaining socially appropriate behavior, would prevent plaintiff from working. Therefore, the Court recommends that this case be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for reevaluation of the medical evidence and, if appropriate, additional vocational expert testimony.
Plaintiff, JACK SANTORNINO ABAD, was born in 1974 and was 32 years old on the alleged date of disability onset of September 1, 2006 ( see Tr. 186, 190). Plaintiff completed ninth grade and then obtained his GED (Tr. 68). Following school, he took a few auto body seminars ( id. ). Plaintiff has worked in construction and painting cars and as a delivery truck driver and house painter (Tr. 64-67). Plaintiff stopped working due to his impairments. (Tr. 65-66, 97-98, 230).
Plaintiff has at least the severe impairments of "bilateral carpal tunnel syndrome, affective disorder, anxiety disorder, substance abuse disorders, and rule out malingering (20 CFR 404.1520(c) and 416.920(c))" (Tr. 28).
At the time of the hearing, plaintiff was living in his parents' basement (Tr. 62).
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. 186-193). The applications were denied initially and following reconsideration (Tr. 117-123, 128-139). Plaintiff's requested hearing was held before Administrative Law Judge Cheri L. Filion ("the ALJ") on March 6, 2012 ( see Tr. 51-110). On April 23, 2012, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 22-49).
On February 20, 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 April 2013 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter on June 26, 2013 ( see ECF Nos. 9, 10).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ erred when the ALJ failed to adopt or give any reason for rejecting the opinion of state agency medical consultant Alnoor Virji, M.D.; (2) Whether the ALJ erred when the ALJ failed to adopt or give any reason for rejecting the opinions of state agency medical consultants John Robinson, Ph.D. and Thomas Clifford, Ph.D.; (3) Whether the ALJ erred when the ALJ rejected the opinions of plaintiff's treating psychologist Antone Pryor, Ph.D.; and (4) Whether the ALJ erred when the ALJ rejected the opinion of examining psychologist Daniel Neims, Psy.D. ( see ECF No. 12, pp. 1-2).
STANDARD OF REVIEW
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, 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. 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 the Soc. Sec. Admin, 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, 332 U.S. at 196). In the context of social security ...