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. 3; Consent to Proceed Before a United States Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkt. 9, 10, 11).
After considering and reviewing the record, the Court concludes that the ALJ erred in giving limited weight to a portion of treating physician Dr. Jos Cové’s opinion because the ALJ incorrectly determined that Dr. Cové’s opinion was based on plaintiff’s self-reports. This conclusion is not based on substantial evidence in the record because his opinion was also based on diagnostic imaging, including MRIs and x-rays, clinical findings and observations, and his own medical knowledge. Had the ALJ credited fully Dr. Cové’s opinion, the residual functional capacity would have included additional limitations, and thus the error is not harmless.
Plaintiff, DOUGLAS MIRANDA, was born in 1958 and was 49 years old on the alleged date of disability onset of December 31, 2007 (see AR. 263-69, 270-76). Plaintiff attended private schools and has a 12th grade aptitude (AR. 45). In addition, plaintiff has attended some college and successfully completed the Tacoma Community College home inspection continual education program (id.). Plaintiff has work experience as a union carpenter and iron worker (AR. 335- 40). Plaintiff was injured on the job when he was hit in the head by a 280 pound steel girder (AR. 49, 58). After leaving carpentry, plaintiff was self-employed for about three months checking on seniors who lived alone, but plaintiff stopped working after he was involved in a car accident (see AR. 546).
According to the ALJ, plaintiff has at least the severe impairments of “trauma to head resulting in status post cervical C5-6 discectomy and fusion with multi-level cervical degenerative changes; hypertension. After the date last insured the claimant had the following additional impairments: adjustment disorder; depressive disorder; rule out adjustment and personality disorders (20 CFR 404.1520(c) and 416.920(c))” (AR. 17-18).
At the time of the hearing, plaintiff was living alone (AR. 46).
Plaintiff’s application for disability insurance benefits (“DIB”) 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. 121-40, 143-64). Plaintiff’s requested hearings were held before Administrative Law Judge David Johnson (“the ALJ”) on June 1, 2012 (see AR. 33-83) and December 18, 2012 (see AR. 84-118). On January 24, 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. 12-32).
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Did the Commissioner err by failing to properly evaluate opinion evidence; (2) Did the Commissioner err by failing to find that plaintiff met or equaled Listing 1.04; (3) Did the Commissioner err by failing to properly determine plaintiff’s severe impairments; and (4) Did the Commissioner err in determining plaintiff’s residual functional capacity (see Dkt. 9, 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 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
(1) Did the Commissioner err by failing to properly evaluate opinion ...