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 Dkt. 16, 17, 18).
After considering and reviewing the record, the Court concludes that the ALJ erred in finding plaintiff able to perform other work that exists in significant numbers in the national economy. Because the ALJ's ultimate determination regarding disability was based on the testimony of the VE that plaintiff could perform other work, the error affected the ultimate disability determination and is not harmless.
Therefore, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration.
Plaintiff, WESLEY SCOTT MITCHELL, was born in 1962 and was 48 years old on the alleged date of disability onset of November 17, 2010 ( see AR. 175). Plaintiff graduated from high school (AR. 450). Plaintiff has no past relevant work (AR. 42, 71-74).
According to the ALJ, plaintiff has at least the severe impairments of "degenerative joint disease of the right knee, tendinosis of the supraspinatus tendon and osteoarthritic change in the glenohumeral articulation and acromioclavical joint without significant impingement of the tendon, polysubstance abuse in reported remission, psychosis, NOS, and mood disorder, NOS (20 CFR 416.920(c))" (AR. 32).
At the time of the hearing, plaintiff was living in a room in the garage at his parents' home (AR. 53).
On November 22, 2010, plaintiff filed an application for Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act (AR. 175-79). His application was denied initially and following reconsideration ( see AR. 86-100, 102-18). Plaintiff's requested hearing was held before Administrative Law Judge Paul G. Robeck ("the ALJ") on January 10, 2013 ( see AR. 50-84). On January 18, 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. 27-49).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ erred in failing to include in his RFC finding all of the limitations assessed by several physicians; (2) Whether or not the ALJ erred in ignoring the opinion of Vocational Specialist Kathy O'Neal; (3) Whether or not the ALJ erred in rejecting the plaintiff's testimony; and (4) Whether or not the ALJ erred in finding plaintiff able to perform other work that exists in significant numbers in the national economy ( see Dkt. 16, pp. 1-2). Because this Court reverses and remands the case based on issue 4, the Court need not further review issues 1, 2, and 3, and expects the ALJ to reevaluate 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. ...