United States District Court, Western District of Washington, Tacoma
ROBERT D. AIREY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
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. 15, 19, 20).
After considering and reviewing the record, the Court concludes that the ALJ erred by failing to evaluate explicitly plaintiff’s fatigue and any effect that it may have had on his ability to perform work. Because plaintiff’s fatigue was diagnosed by his treating physician, and was reported throughout the record, it is significant, probative evidence that the ALJ erred in failing to discuss.
Because this error is not harmless, this matter is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and remanded to the Acting Commissioner for further consideration consistent with this order.
Plaintiff, ROBERT D. AIREY, was born in 1961 and was 51 years old on the alleged date of disability onset of September 30, 2012 (see AR. 194-202, 203-13). Plaintiff earned his GED and has obtained a basic electronics technician certificate (AR. 44). Plaintiff has worked as a general laborer, lamination press operator, forklift operator, mechanic helper in fabrication, and tire and lube technician (AR. 268-43). His last employment was as a tire and lube technician where he took a leave of absence that lasted for more than a year, when he was terminated (AR. 43).
According to the ALJ, plaintiff has at least the severe impairments of “prostate cancer, status-post radiation and prostatectomy; degenerative disc disease; [and] osteoarthritis (20 CFR 404.1520(c) and 416.920(c))” (AR. 13).
At the time of the hearing, plaintiff was living in a duplex with his wife and they were caring for a friend’s four month old child (AR. 35-36).
Plaintiff’s September 30, 2012 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. 57-76, 79-100). Plaintiff’s requested hearing was held before Administrative Law Judge Robert P. Kingsley (“the ALJ”) on January 30, 2014 (see AR. 30-54). On March 19, 2014, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see AR. 8-29).
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ erred by not finding fatigue, malaise and involuntary loss of weight to be a severe impairment suffered by plaintiff; (2) Whether or not the ALJ erred in improperly finding plaintiff capable of performing light work and other work that exists in the national economy in significant numbers; and (3) Whether or not the ALJ erred in not including plaintiff’s fatigue, malaise and involuntary weight loss in the hypothetical (see Dkt. 15, p. 1).
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 ...