United States District Court, W.D. Washington, Seattle
CORTINA M. ROGERS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Cortina M. Rogers seeks review of the denial of her Disability Insurance Benefits application. She contends the ALJ erred by (1) making step-three findings without obtaining an updated medical opinion from a medical expert, and (2) summarily rejecting the Department of Veterans Affairs disability rating. Dkt. 24. The Court agrees and recommends that the case be REVERSED and REMANDED for further administrative proceedings.
Ms. Rogers was 33 years old on her date last insured, has a high school education, and has worked as a laborer, parts clerk, and dispatcher. Tr. 155, 193, 197. On November 16, 2009, she applied for benefits, alleging disability as of December 1, 2000. Tr. 155. Her application was denied initially and on reconsideration. Tr. 100, 105. After conducting a hearing, the ALJ issued a decision on February 16, 2012, finding Ms. Rogers not disabled. Tr. 21-33. As the Appeals Council denied Ms. Rogers's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1.
THE ALJ'S DECISION
Utilizing the five-step disability evaluation process,  the ALJ found that Ms. Rogers had not engaged in substantial gainful activity since the alleged onset date; she had the following severe impairments: posttraumatic stress disorder, depressive disorder, not otherwise specified, and status post left ulna fracture with open reduction internal fixation; and these impairments did not meet or equal a listed impairment. Tr. 23-24. The ALJ found that Ms. Rogers had the residual functional capacity to perform light work; she was capable of occasionally fingering with her left hand; she was capable of simple, routine, repetitive tasks and work that involved occasional contact with supervisors and co-workers but no contact with the general public; and she was capable of work that involved few if any changes in the work setting. Tr. 25. The ALJ found that Ms. Rogers was unable to perform any past relevant work but she could perform jobs that exist in significant numbers in the national economy. Tr. 31. The ALJ therefore concluded that Ms. Rogers was not disabled. Tr. 32.
A. Need for updated medical opinion
Ms. Rogers argues that the ALJ erred by making a step-three finding that her mental impairments did not meet or equal a listing without obtaining an updated medical opinion from a medical expert, in violation of Social Security Ruling (SSR) 96-6p. Dkt. 24 at 5.
Single decision-maker (SDM) Mark O'Neill reviewed Ms. Rogers's case on January 11, 2010 and found the evidence insufficient to show that Ms. Rogers was disabled due to her mental impairments during the relevant period. Tr. 389. On January 26, 2010, Thomas Clifford, Ph.D., signed off on the psychiatric review technique form completed by the SDM, finding insufficient evidence. Tr. 377. The Social Security Administration denied Ms. Rogers's claim on January 28, 2010, based on the finding of insufficient evidence to prove she was disabled. Tr. 100.
On April 5, 2010, Matthew Comrie, Psy.D., reviewed the evidence and affirmed the determination that there was insufficient evidence of a severe mental impairment before the date last insured. Tr. 393. The SSA denied reconsideration of Ms. Rogers's claim on April 8, 2010, again based on the finding that the evidence was insufficient to determine disability. Tr. 105.
Before and after the ALJ hearing, Ms. Rogers submitted over 600 pages of additional medical records. Tr. 397-1015. After considering both the original and the updated records, the ALJ found that Ms. Rogers had medically determinable severe mental impairments and proceeded with the five-step disability evaluation process, including an evaluation of whether these impairments met or equaled a listed impairment and their impact on her residual functional capacity. Tr. 23-24. The ALJ found that the impairments caused Ms. Rogers mild restriction in her activities of daily living; moderate difficulties in her social functioning; moderate difficulties in her concentration, persistence, or pace; and no episodes of decompensation of extended duration. Tr. 24-25.
Under 20 C.F.R. § 404.1520a(c), the ALJ must follow a special technique for evaluating mental impairments. If the ALJ determines that the claimant has a medically determinable mental impairment, the ALJ must rate the degree of functional limitation resulting from the impairment in four broad areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c). If the degree of functional limitation in the first three areas is "none" or "mild" and it is "none" in the fourth area, the impairment is generally not severe. 20 C.F.R. § 404.1520a(d). Otherwise, the impairment is severe, and the ALJ must consider whether it meets or equals a listed impairment at step three. To meet the listings at issue here, the claimant must meet at least two of the following criteria (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404, App. 1, § 12.04, 12.06.
The ALJ is ultimately responsible for deciding the legal question of whether a claimant's impairments meet or equal a listing. See 20 C.F.R. § 404.1526. In making this decision, the ALJ must consider all the evidence in the case record. 20 C.F.R. § 404.1526(c). The ALJ must also consider the opinion given by one or more medical or psychological consultants designated by the Commissioner. Id. Such consultants include consultants hired by the state agency authorized to make disability determinations. 20 C.F.R. § 404.1526(d). As explained in SSR 96-6p, "longstanding policy requires that the judgment of a physician (or psychologist) designated by the Commissioner on the issues of equivalence on the evidence before the administrative law judge or the Appeals Council must be received into the record as expert opinion evidence and given appropriate weight." The ALJ must obtain an updated opinion from a medical expert when additional medical evidence is received ...