United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Omar Dahir seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred by improperly rejecting probative medical and "other" source opinions, erroneously rejecting his testimony, and failing to prove that he can perform other jobs in the economy. Dkt. 14. As discussed below, the Court recommends REVERSING the Commissioner's final decision and REMANDING for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).
Mr. Dahir is a 38 years old Somali immigrant. Somali is his primary language and he completed high school in Somalia. Tr. 569. Mr. Dahir has worked as an airport baggage handler, a fish cleaner and packer, a janitor, and a home health aide for his roommate. Tr. 579, 582. He applied for both supplemental security income and disability insurance benefits, alleging disability as of October 22, 2010. Tr. 42, 51. His applications were denied initially and on reconsideration. Tr. 49, 58, 69, 81. The ALJ conducted a hearing on February 13, 2013, finding Mr. Dahir not disabled. Tr. 14. As the Appeals Council denied Mr. Dahir's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-6.
THE ALJ'S DECISION
At step one of the five-step disability evaluation process,  the ALJ found that Mr. Dahir met the insured status requirements and has not engaged in substantial gainful activity since the alleged onset date. Tr. 16. Mr. Dahir has the severe impairments of osteoarthritis and low back pain, but neither of these impairments meet or equal the requirement of a listed impairment. Tr. 16-17. Considering these impairments, Mr. Dahir has the Residual Functional Capacity ("RFC") to perform sedentary work with additional limitations. Tr. 18. Mr. Dahir can lift or carry a maximum of ten pounds occasionally and frequently lift or carry small articles such as docket files or small tools. Tr. 18. With normal breaks, Mr. Dahir can stand and/or walk for two hours and sit for six hours of an eight hour workday. Tr. 18. He is limited to occasional reaching in the front, lateral and overhead with his left arm. Tr. 18. Finally, Mr. Dahir must avoid concentrated exposure to hazards. Tr. 18. At step four, this RFC precludes Mr. Dahir from performing his past relevant work as a baggage handler, janitor, home health aide, and fish cleaner/packer. Tr. 21. However, a Vocational Expert testified that Mr. Dahir could perform the jobs of assembler and cashier II, which exist in significant numbers in the national economy. Tr. 22. Accordingly, the ALJ determined at step five that Mr. Dahir is not disabled. Tr. 22-3.
Mr. Dahir raises several assignments of error relating to the ALJ's evaluation of the evidence in the record. Dkt. 14. According to Mr. Dahir, the ALJ improperly ignored the opinions of Trula Thompson, M.D. and Annette Lund, A.R.N.P., that he is limited to less than sedentary work. Tr. 528, 532. Additionally, Mr. Dahir argues that the ALJ erroneously discredited his testimony. Tr. 20.
I. Medical Opinions
In arriving at Mr. Dahir's sedentary RFC, the ALJ purported to give significant weight to the two opinions of Department of Social and Health Services ("DSHS") reviewing physician Trula Thompson, M.D., issued in November 2011 and August 2012. Tr. 20, 521-24, 529-35. In November 2011, Dr. Thompson evaluated Mr. Dahir as capable of performing in a sedentary capacity. Tr. 523. By the August 2012 review, Dr. Thompson had downgraded Mr. Dahir to less than sedentary. Tr. 532. According to the ALJ, "[w]hile she did not explain the rationale for the claimant's change from sedentary to less than sedentary work in her evaluations, Dr. Thompson's assessment of his functional abilities is generally consistent with the objective medical findings and the observations of treatment providers." Tr. 20.
This finding ignores the heart of Dr. Thompson's August 2012 evaluation. Dr. Thompson noted, multiple times, the paucity of objective medical evidence available for review. Tr. 529-30. Dr. Thompson found that Mr. Dahir's reported impairments were only partially supported by medical evidence. Tr. 529. After noting the September 2011 DSHS Physical Functional Evaluation from Annette Lund, A.R.N.P., Dr. Thompson reported, "[n]o subsequent nor current medical records are included, which are required for an eval for potential SSI eligibility." Tr. 529. Dr. Thompson subsequently concluded that although previous DSHS evaluations had rated Mr. Dahir at light or sedentary exertion, "based on objective medical appears more likely to be found at sed at the least; and based on no current medical would not be eligible under program guidelines." Tr. 529. Dr. Thompson recommended obtaining a detailed physical examination to assess Mr. Dahir's neurology, gait, balance, and range of motion and obtain any interim evaluations and radiology. Tr. 529. Despite this recommendation, the record lacks a detailed clinical assessment by an "acceptable" medical source. See, 20 C.F.R. §§ 404.1513(a), 416.913(a).
The ALJ chose to resolve any discrepancy between Dr. Thompson's two evaluations by adopting the sedentary rating and dismissing the subsequent assessment. "Dr. Thompson did not cite objective findings to support this deterioration of the claimant's functioning, but did note that it is unlikely that the claimant's condition meets the requirements of Social Security disability." Tr. 19. However, as noted above, Dr. Thompson did not conclude that Mr. Dahir's condition fails to meet the requirements. Dr. Thompson opined that Mr. Dahir's condition probably warrants a sedentary, or less than sedentary, functional capacity, but the medical record is inadequate. Tr. 529. The medical record, rather than Mr. Dahir's physical impairments, is deficient to establish disability. ALJ's interpretation of Dr. Thompson's second opinion is not supported by the evidence in the record.
This misinterpretation of Dr. Thompson's review of the medical evidence results in a failure to develop the record as necessary to determine the true level of Mr. Dahir's impairments. "In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). "Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate inquiry.'" Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). This duty exists even if, as here, the claimant is represented by counsel. Id.
The Acting Commissioner contends that the ALJ met this duty because the evidence was unambiguous and sufficient to draw a conclusion on the claims. Dkt. 18 at 7. The Court disagrees. The ALJ made no finding that the record is insufficient to make a determination, but Dr. Thompson clearly concluded that Mr. Dahir's existing medical record demonstrated impairment that warranted further assessment. Given the ALJ's purported reliance on Dr. Thompson's opinion, he was not free to ignore the concern or recommendations expressed in that opinion. Tonapetyan, 242 F.3d at 1150-51. Dr. Thompson, a non-examining DSHS consultant, is the only recent acceptable medical source in the record. The medical examination and assessments were performed by Mr. Dahir's primary provider, Annette Lund, A.R.N.P., who is considered an "other source" and a lay witness. Turner v. Comm'r of Soc.Sec., 613 F.3d 1217, 1223-4 (9th Cir. 2010). Without recent relevant medical evidence, the record is ...