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McCall v. Colvin

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

March 31, 2015

SANDRA A. McCALL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

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. 5; Consent to Proceed Before a United States Magistrate Judge, Dkt. 6). This matter has been fully briefed ( see Dkt. 15-1, 19, 20).

After considering and reviewing the record, the Court concludes that the ALJ failed to evaluate properly the medical evidence from examining psychologist Dr. Tasmyn Bowes because the ALJ incorrectly determined that Dr. Bowes' opinion was largely based on plaintiff's self-reports. This conclusion is not based on substantial evidence in the record because, in addition to plaintiff's self-reports, Dr. Bowes' opinion was based on objective medical evidence and her personal observations. Further, the ALJ's finding that Dr. Bowes' is entitled to less weight because she only saw plaintiff one time is not legitimate. Had the ALJ credited fully Dr. Bowes' opinion, 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.

BACKGROUND

Plaintiff, SANDRA A. McCALL, was born in 1959 and was 50 years old on the alleged date of disability onset of October 1, 2010 ( see AR. 275-81, 283-91). Plaintiff has a GED, some technical college, and is a certified nursing assistant (AR. 54, 62). Plaintiff has work experience as a nursing assistant (AR. 305-07). Plaintiff was last employed for one day at a nursing home but was terminated because of a past legal issue (AR 60).

According to the ALJ, plaintiff has at least the severe impairments of "tobacco abuse, alcohol abuse, degenerative disc disease of the cervical spine, generalized anxiety disorder/post-traumatic stress disorder, depression, torticollis/cervical dystonia and related headaches, and thoracic outlet syndrome left (20 CFR 404.1520(c) and 416.920(c))" (AR. 20).

Prior to the hearing, plaintiff was living in a friend's apartment ( see AR. 338).

PROCEDURAL HISTORY

Plaintiff's applications 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. 101-12, 113-24, 165-69, 170-78). Plaintiff's requested hearing was held before Administrative Law Judge Michael Gilbert ("the ALJ") on November 8, 2012 ( see AR. 41-98). On January 25, 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. 14-40).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ properly evaluated plaintiff's testimony; (3) Whether or not the ALJ properly evaluated the lay evidence; (4) Whether or not the ALJ properly assessed plaintiff's residual functional capacity; (5) Whether or not the ALJ erred by basing his step five finding on a residual functional capacity assessment that did not include all of plaintiff's limitations, and by failing to find that plaintiff was disabled under the framework of Medical-Vocational Rule 201.14; and (6) Whether or not the Commissioner's failure to file a complete record with this court violated the Social Security Act, the HALLEX, plaintiff's constitutional right to procedural due process, and the legal standard set forth in Brewes ( see Dkt. 15-1, pp. 1-2).

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. ...


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