United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, 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 ECF Nos. 9, 11, 14).
After considering and reviewing the record, the Court concludes that the ALJ did not provide specific and legitimate reasons supported by substantial evidence in the record as a whole for giving little weight to the 2010 opinion of treating physician Dr. Tristan McGovern, M.D. The ALJ incorrectly found that Dr. McGovern's opinion was inconsistent with the record as a whole and incorrectly relied on plaintiff's lack of treatment to reject Dr. McGovern's opinion. Had the ALJ credited fully the opinion of Dr. McGovern, the residual functional capacity would have included additional limitations, and thus the error is not harmless.
Therefore, this matter must be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration.
Plaintiff, GARY JAY GARCIA, was born in 1961 and was 41 years old on the alleged date of disability onset of July 17, 2002 ( see AR. 214-20). Plaintiff completed high school, two years of college and graduated from the Washington Stunt Association (AR. 48). Plaintiff has worked as a welder/fitter, construction and fabrication, nurses' aide and doing maintenance (AR. 49-52, 251-62). Plaintiff last worked as a welder, but stopped working after he injured his back on the job ( see AR. 30).
According to the ALJ, plaintiff has at least the severe impairments of "degenerative disc disease of the lumbar and cervical spine; lumbar spondylosis; right lumbar radiculopathy; obesity; pain disorder; avoidant personality disorder; depressive disorder; status post carpal tunnel release of the left non-dominant hand and left ulnar neuropathy" (AR. 26).
At the time of the hearing, plaintiff was living with his girlfriend (AR. 47).
Plaintiff's application for Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following reconsideration ( see AR. 102-15, 118-32). Plaintiff's requested hearing was held before Administrative Law Judge Stephanie Martz ("the ALJ") on December 13, 2012 ( see AR. 43-101). On March 5, 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. 21-42).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the Commissioner err in determining that plaintiff did not meet or equal any listing; (2) Did the Commissioner err in evaluating the opinion evidence; and (3) Did the Commissioner err in determining plaintiff had the residual functional capacity to perform medium level work ( see Dkt. 9, p. 2). Because the Court concludes that this matter must be reversed and remanded based on issues 2 and 3, the Court need not further review issue 1, and would expect the ALJ to re-evaluate the record as a whole in light of the direction provided below.
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)). The Court must independently determine whether or not "the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, ...