United States District Court, W.D. Washington, at Tacoma
BRETT P. RYAN, 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. 13, 16, 17).
After considering and reviewing the record, the Court concludes that the ALJ failed to discuss various significant and probative aspects of the record in this case, including two opinions from examining doctors, as well as objective testing and a diagnosis regarding plaintiff's sleep apnea. The sleep study performed to evaluate plaintiff's sleep issues clearly is significant probative evidence that the ALJ erred by failing to discuss.
Therefore, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further proceedings.
Plaintiff, BRETT P. RYAN, was born in 1989, and the alleged date of disability onset is August 7, 1989 ( see Tr. 258-59, 260-66). Plaintiff dropped out of school in the 10th grade and tried to get his GED through a vocational college but failed (Tr. 51-52). He worked briefly through the Division of Vocational Rehabilitation de-burring metal, but was fired, allegedly because he was obese, could not work in the environment and needed to get his GED (Tr. 55-56).
According to the ALJ, "since August 6, 2007, the claimant has the following severe impairments: dysthymic disorder; attention deficit hyperactivity disorder (ADHD); personality disorder; borderline intellectual functioning; asthma; hypertensive vascular disease; [and] obesity (20 CFR 404.1520(c) and 416.920(c))" (Tr. 24).
At the time of the hearing, plaintiff was living with his mother (Tr. 59).
Plaintiff's applications for child insurance benefits based on disability pursuant to 42 U.S.C. §§ 402(d)(1), 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and following reconsideration ( see Tr. 80-90, 91-101, 104-118, 119-133). Plaintiff's requested hearing was held before Administrative Law Judge Gary Elliott ("the ALJ") on November 28, 2012 ( see Tr. 42-74). On December 5, 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.18-41).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the ALJ fail to consider physical and mental evidence at step two and in fashioning the RFC; (2) Did the ALJ selectively chose which mental assessments to give weight to and which to reject using inconsistent criteria in order to support his ultimate conclusion to deny the claim; (3) Is the credibility assessment by the ALJ based on an improper analysis; (4) Is the rejection of the lay witness evidence based on an improper legal analysis and unsupported evidentiary reasons; (5) Did the ALJ err by ignoring GAF scores from various examining or treating mental experts that fell within a narrow range; (6) Did the ALJ err by finding plaintiff capable of working at a job that is inconsistent with a limitation to simple routine tasks; and (7) Did the ALJ err by failing to respond to a request for a subpoena duces tecum for the VE resulting in VE testimony about job numbers that the VE was unable to substantiate ( see ECF No. 13, pp. 1-2). Because the Court concludes that arguments one and two are dispositive in this case, and that this matter must be reversed and remanded for further proceedings, the remaining arguments either will not be discussed herein, or will be discussed only briefly.
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) Did the ALJ fail to consider physical and mental evidence at step 2 and in fashioning the RFC?
a. Plaintiff's sleep apnea
The ALJ erred by failing to discuss explicitly plaintiff's sleep apnea and his sleep study performed on May 6, 2012 ( see ECF No. 13, pp. 18-19; Tr. 716-19). The ALJ's decision includes no discussion of plaintiff's sleep apnea. Defendant contends that this error was harmless because a "mere diagnosis says nothing about the severity of a condition" ( see ECF No. 16, p. 14 ( citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988))). However, the record contains more than a "mere diagnosis" regarding this condition.
Plaintiff was referred by Dr. Surinder Singh, M.D. to Dr. Gita G. Patel, D.O., for an overnight polysomnography in order to evaluate plaintiff's sleep complaints, said study being conducted on May 6, 2012 ( see Tr. 717-18). Dr. Patel conducted a history of plaintiff's present illness, including the notation that plaintiff "does snort;" that he "tosses and turns in ...