United States District Court, W.D. Washington, Tacoma
CHRISTOPHER A. FERGUSON, 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. 15, 16, 17).
After considering and reviewing the record, the Court finds that the ALJ's duty to supplement the record further regarding plaintiff's memory complaints was not triggered by the consultative examination report of a licensed psychologist who completed memory testing and found no impairment because the findings of this qualified examiner were not ambiguous and the record was adequate to allow for proper evaluation of the evidence. Furthermore, the ALJ's rejection of the testimony of plaintiff's mother and girlfriend due to inconsistencies with the medical evidence was supported by substantial evidence in the record.
Therefore, this matter should be affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, CHRISTOPHER A. FERGUSON, was born in 1983 and was 22 years old on the alleged date of disability onset of January 1, 2006 ( see Tr. 139). Plaintiff did not graduate from high school and doesn't remember why he left school (Tr. 48-49). Plaintiff has worked as an assistant manager of a tool manufacturing company, dishwasher, roofer, salad maker and telemarketer (Tr. 157).
At the time of the hearing, plaintiff was living with his mother and uncle in a home that once belonged to his grandparents (Tr. 34, 35-36).
Plaintiff has at least the severe impairments of "seizure disorder status post traumatic brain injury, possible hearing loss on the left, a right shoulder disorder, disruptive disorder NOS, and cannabis dependence (20 CFR 416.920(c))" (Tr. 16).
Plaintiff filed an application for Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act on November 16, 2008 ( see Tr. 132-38). This application was denied and plaintiff did not appeal that decision. Plaintiff filed a second application for SSI on October 26, 2009 (Tr. 139-45). The application was denied initially and following reconsideration (Tr. 70-73, 80-82). Plaintiff's requested hearing was held before Administrative Law Judge Wayne N. Araki ("the ALJ") on June 15, 2011 ( see Tr. 31-62). On November 22, 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.11-30).
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. 1-7). See 20 C.F.R. § 416.1481. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in June, 2013 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on August 16, 2013 ( see ECF Nos. 9, 10).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ erred in failing to fully develop the record when plaintiff was not sent to a source qualified to evaluate the residual effects of his brain injury; and (2) Whether the ALJ erred in rejecting the lay witness statements because of secondary gain motivation ( see ECF No. 15, 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 ...