United States District Court, W.D. Washington, Tacoma
ROBERT M. WARD, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
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. 14, 17, 18).
After considering and reviewing the record, the Court finds that the ALJ failed to address significant probative evidence from an examining provider, Dr. Donald D. Ramsthel and failed to provide legitimate reasons for discounting lay witness testimony from plaintiff's mother, Barbara J. Kellis. Plaintiff's limitations from physical impairments require further evaluation.
Therefore, this Court recommends that this matter be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration.
Plaintiff, ROBERT M. WARD, was born in 1965 and was 43 years old on the amended alleged date of disability onset of October 30, 2009 ( see Tr. 177, 184; ECF No. 14, p. 2, n. 2). Plaintiff quit school in the 11th grade but has obtained his GED (Tr. 35-36). Plaintiff has worked as a door builder, hydraulic hose maker, stocker, carpenter, and construction worker (Tr. 22, 38-40, 47-48). At the time of the hearing, plaintiff was single and living in a house with his mother (Tr. 34-35).
Plaintiff has at least the severe impairments of "bilateral carpal tunnel syndrome, degenerative disc disease of the cervical spine, degenerative joint disease of the left shoulder, dysfunction of major joints, right shoulder pain and shoulder impingement syndrome status post bilateral distal clavicle excision for AC arthritis and labral surgery on the right shoulder, plantar fasciitis, early bilateral Dupuytren's contractures, foot pain, and history of polysubstance abuse in remission (20 CFR 404.1520(c) and 416.920(c))" (Tr. 18).
On November 8, 2010, 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. 175-183, 184-190). The applications were denied initially and following reconsideration (Tr. 74-85, 86-97). Plaintiff's requested hearing was held before Administrative Law Judge Rudy (Rudolph) M. Murgo ("the ALJ") on August 20, 2012 ( see Tr. 30-56). On August 30, 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. 13-29).
On March 11, 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 May, 2013 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on August 2, 2013 ( see ECF Nos. 9, 10).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ properly evaluated plaintiff's testimony; (3) Whether or not the ALJ properly evaluated the lay evidence; (4) Whether or not the ALJ properly assessed plaintiff's residual functional capacity; and (5) Whether or not the ALJ erred by basing his step five finding on a residual functional capacity assessment that did not include all of plaintiff's limitations, and by relying on vocational expert testimony that was factually incorrect ( see ECF No. 14, p. 1).
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 ...