United States District Court, Western District of Washington, Tacoma
ORDER ON PLAINTIFF’S COMPLAINT
J. Richard Creatura, United States 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, Dkt. 5; Consent to Proceed Before a United States Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 12, 14, 15).
After considering and reviewing the record, the Court concludes that the ALJ erred in finding that plaintiff performed past relevant work as a Cashier II, when plaintiff never held such a position. As the error is not harmless, this matter should be reversed and remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, ANNEMARIE BOUFFIOU, was born in 1955 and was 54 years old on the alleged date of disability onset of December 16, 2009 (see AR 41-42, 266-67, 301-09). Plaintiff graduated from high school (AR 55). Plaintiff has work experience as a school bus driver, as a hairdresser, in food service, as a chef/table server and as an owner/manager of a café (AR 351-62).
According to the ALJ, plaintiff has at least the severe impairments of “degenerative joint disease of the hips, cervical spine, and lumbar spine; and fibromyalgia (20 CFR 404.1520(c) and 416.920(c)” (AR 15).
At the time of the hearing, plaintiff was living with some friends in their home (AR 45-46).
Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42 U.S.C. § 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 AR 83-95, 96-108, 111-25, 126-40). Plaintiff’s requested hearing was held before Administrative Law Judge Robert Kingsley (“the ALJ”) on November 8, 2012 (see AR 36-80). On January 25, 2013, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see AR 9-29).
In plaintiff’s Opening Brief, plaintiff raises many issues, including the following: (1) Whether or not the ALJ erred by basing his step four finding on an erroneous determination of plaintiff’s past relevant work; (2) Whether or not the Commissioner’s failure to file a complete record with this court violated the Social Security Act, violated plaintiff’s constitutional right to procedural due process and violated the legal standard set forth in Brewes; and (3) Whether or not the new evidence submitted to the Appeals Council shows that the ALJ’s decision was not supported by substantial evidence and/or that it was based on legal error (see Dkt. 12, pp. 1-2). Because the Court concludes that issue number one is dispositive, the remainder of the issues raised will be discussed only briefly in order to provide more direction for the ALJ.
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 erred by basing his step four finding on an erroneous determination of ...