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Smith v. Colvin

United States District Court, W.D. Washington, Tacoma

September 2, 2014

PAULA A. SMITH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


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. 6; Consent to Proceed Before a United States Magistrate Judge, ECF No. 8). This matter has been fully briefed ( see ECF Nos. 20, 21, 24).

After considering and reviewing the record, the Court concludes that the ALJ failed to specify all of the requisite findings in the residual functional capacity ("RFC"), and hence, the ALJ's dependent finding at step four that plaintiff could perform her past relevant work is not a finding based on substantial evidence in the record. Although the ALJ found that plaintiff required more than the usual amount of bathroom breaks, the ALJ failed to specify the duration of said breaks. According to the vocational expert, if the extra breaks are only five to seven minutes in duration, plaintiff still would be capable of competitive work, while if they are longer than ten minutes, plaintiff would not be capable of competitive work.

Therefore, this matter must be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further proceedings consistent with this Order


Plaintiff, PAULA A. SMITH, was born in 1965 and was 43 years old on the alleged date of disability onset of July 17, 2009 ( see Tr. 137-139). Plaintiff graduated from high school (Tr. 42). Plaintiff has work experience in sales and cashiering and as a daycare provider (Tr. 51-53, 167). According to her testimony, plaintiff quit her last job because "of the reactive airway disease" ( see Tr. 621), although evidence from the record suggests that an accusation of theft may have been involved ( see Tr. 18, 313, 624-28).

According to the ALJ, plaintiff has at least the severe impairments of "Degenerative Disc Disease; Obesity; Hyperlipidema; and Hypertension (20 CFR 404.1520(c))" (Tr. 11).

At the time of the hearing, plaintiff was living in a home with her husband, a dog, four cats and a bird (Tr. 41).


Plaintiff's application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following reconsideration ( see Tr. 76-78, 80-81). Plaintiff's requested hearing was held before Administrative Law Judge Rebekah Ross ("the ALJ") on February 1, 2012 ( see Tr. 27-73). On August 15, 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.6-26).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the ALJ err by rejecting the functional limitations determined by an examining state agency doctor, instead relying on the opinion of a non-examining reviewer who had incomplete records, leading to a defective RFC; (2) Did the ALJ improperly give great weight to the opinions of state agency reviewers regarding plaintiff's functional ability for legally and factually supported reasons; (3) Did the ALJ fail in the duty to develop the record to establish whether or not the diagnosis of fibromyalgia met the requirements of SSR 12-2p; (4) Is the credibility assessment of the ALJ flawed because it is not based on substantial evidence and uses an impermissible methodology; (5) Is the ALJ's rejecting of the lay witness statements based on unsound legal reasons; and (6) Is the RFC assessment by the ALJ ambiguous because the requirement of a need to have access to a bathroom on an average of two unscheduled bathroom breaks in addition to regularly scheduled breaks are not defined with respect to duration ( see ECF No. 20, pp. 1-2). Because the Court concludes that issue number six is dispositive and the most egregious error, the remainder of the issues will not be discussed or will be discussed only briefly.


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. ...

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