United States District Court, W.D. Washington, Tacoma
MARTIN J. MASON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
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. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed ( see ECF Nos. 18, 21, 22).
After considering and reviewing the record, the Court finds that the ALJ erred when he failed to ask the vocational expert ("VE") about inconsistencies regarding other jobs that plaintiff could perform in the national economy.
Therefore, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, MARTIN MASON, was born in 1964 and was 46 years old on the amended alleged date of disability onset of April 17, 2010 ( see Tr. 47, 214). Plaintiff has a GED plus some college (Tr. 63). Plaintiff served in the Army until he was discharged on his amended alleged date of disability (Tr. 68).
Plaintiff has at least the severe impairments of "posttraumatic stress syndrome (PTSD); alcohol abuse; degenerative disc disease; and bilateral metatarsalgia (20 CFR 404.1520(c))" (Tr. 23).
At the time of the hearing, plaintiff was living in a rental home with his wife of seven years (Tr. 65).
After plaintiff first filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) on March 11, 2011, which was denied, plaintiff filed another application for disability insurance on October 14, 2011( see Tr. 212-215), which was denied initially and following reconsideration (Tr. 120-130, 133-43). Plaintiff's requested hearing was held before Administrative Law Judge Scott Morris ("the ALJ") on September 19, 2012 ( see Tr. 41-107). On January 15, 2013, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr.18-40).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ provided legitimate reasons for rejecting the testimony of Keith Meyer, M.S., LMHC, the treating therapist; (2) Whether or not the ALJ provided adequate reasons for rejecting the Rating Decision issued by the Veterans Administration; (3) Whether or not the ALJ provided clear and convincing reasons for finding that plaintiff's testimony was not credible; (4) Whether or not the jobs identified by the VE were consistent with their description in the Dictionary of Occupational Titles ("DOT"), and if not, whether the inconsistencies were resolved as required by SSR 00-4p; and (5) Whether or not the case should be remanded to the same ALJ ( see ECF No. 18, p. 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)).
(1) Whether or not the ALJ provided legitimate reasons for rejecting the testimony of Keith Meyers, M.S., LMHC, the treating therapist.
Here, plaintiff complains about the ALJ's rejection of the lay opinion of Mr. Meyers on the basis that he had been treating plaintiff only for seven months and that his opinion was not supported by the longitudinal record ( see Tr. 32).
Mr. Meyers testified at plaintiff's administrative hearing and had been plaintiff's treating therapist for seven months ( see Tr. 93-106). Mr. Meyers provided numerous opinions, such as that plaintiff is unable to work full-time ( see Tr. 94-95). The Court notes his testimony that the issue "has nothing to do with his intelligence or motivation or skill, " but that plaintiff's ability "to focus for any period of time is going to be a significant thing" ( see Tr. 96). The Court also notes Mr. Meyers' testimony that as a therapist, he takes at "full face value" what is reported to him ( see Tr. 101).
Pursuant to the relevant federal regulations, in addition to "acceptable medical sources, " that is, sources "who can provide evidence to establish an impairment, " 20 C.F.R. § 404.1513 (a), there are "other sources, " such as friends and family members, who are defined as "other non-medical sources" and "other sources" such as nurse practitioners, therapists and chiropractors, who are considered other medical sources, see 20 C.F.R. § 404.1513 (d). See also Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010) ( citing 20 C.F.R. § 404.1513(a), (d)); Social Security Ruling "SSR" 06-3p, 2006 SSR LEXIS 5 at *4-*5, 2006 WL 2329939. An ALJ may disregard opinion evidence provided by both types of "other sources, " characterized by the Ninth Circuit as lay testimony, "if the ALJ gives reasons ...