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Shipman v. Colvin

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

February 17, 2015

TONY LEE SHIPMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

J. RICHARD CREATURA, Magistrate Judge.

This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see Dkt. 14, 17, 18).

After considering and reviewing the record, the Court concludes that the ALJ erred by failing to discuss plaintiff's diagnosed impairment of post traumatic stress disorder ("PTSD") at step two of the sequential evaluation process. Because the ALJ failed to properly consider the combined effect of all of plaintiff's impairments when making the residual functional capacity determination, the error is not harmless.

Therefore, this matter should 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 Report and Recommendation.

BACKGROUND

Plaintiff, TONY LEE SHIPMAN, was born in 1962 and was 48 years old on the alleged date of disability onset of August 20, 2010 ( see AR. 192-95). Plaintiff has earned a GED (AR. 74). Plaintiff has work experience as a log truck driver, long haul truck driver, moving truck driver, taxi driver, flagger, floor covering laborer and logging laborer (AR. 215-26). Plaintiff was last employed as a log truck driver and stopped working because he "was no longer a productive employee, even at the part-time level" (AR. 63, 248).

According to the ALJ, plaintiff has at least the severe impairment of "depressive disorder not otherwise specified (20 CFR 404.1520(c))" (AR. 28).

At the time of the hearing, plaintiff was living in a mobile home with his 7-yearold son who is autistic and aspire-epileptic (AR. 60-62).

PROCEDURAL HISTORY

Plaintiff's application for disability insurance benefits ("DIB") pursuant to 42 U.S.C. § 423 (Title II) was denied initially and following reconsideration ( see AR. 106-11, 113-23). Plaintiff's requested hearing was held before Administrative Law Judge R. J. Payne ("the ALJ") on April 19, 2012 ( see AR. 84-104). A second hearing was held on August 21, 2012 (AR. 41-83). On August 31, 2012, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see AR. 23-40).

On May 14, 2014, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (AR. 4-9). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in July, 2014 ( see Dkt. 1, 4). Defendant filed the sealed administrative record regarding this matter ("AR.") on November 18, 2014 ( see Dkt. 12).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ failed to find PTSD was a severe impairment at Step Two, without explanation of whether or not it was severe; (2) Whether or not the ALJ failed to give proper weight to the opinions of examining psychologists Drs. Phillips and Alexander and instead gave controlling weight to the opinion of non-examining psychologist Dr. Moore; and (3) Whether or not the ALJ gave inadequate reasons to support the adverse credibility finding ( see Dkt. 14, 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 ...


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