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Vandevoort v. Berryhill

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

January 31, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security Administration, [1] Defendant.


          David W. Christel, United States Magistrate Judge.

         Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review of the denial of Plaintiff's application for Disability Insurance Benefits (“DIB”). The parties have consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13. See also Consent to Proceed before a United States Magistrate Judge, Dkt. 6.

         After reviewing the record, the Court concludes the Administrative Law Judge (“ALJ”) did not err by declining to obtain a consultative examination or additional medical expert testimony. The ALJ also did not err by finding Plaintiff failed to meet the requirements of a listing, by discounting Plaintiff's subjective symptom testimony, or by finding Plaintiff was capable of performing work existing in significant numbers in the national economy. Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         On August 16, 2013, Plaintiff filed an application for DIB, and on October 23, 2013, Plaintiff amended his application. See Dkt. 9, Administrative Record (“AR”) 456-59. Plaintiff alleges he became disabled on April 1, 2012, due to posttraumatic stress disorder (“PTSD”), carpal tunnel syndrome, anxiety, history of pulmonary embolism, mood disorder, bilateral shoulder impingement, lumbosacral strain, limited motion of the right hip, patella femoral syndrome (bilateral), and chronic prostatitis. See AR 458, 488. Plaintiff's application was denied upon initial administrative review and on reconsideration. See AR 319-45. A hearing was held before an ALJ on September 9, 2014, at which Plaintiff, represented by counsel, appeared and testified. See AR 210. Based on the content of the first hearing, Plaintiff filed objections to the testimony of the Vocational Expert, Steve Duchesne. AR 19-20. The ALJ held a supplemental hearing on June 10, 2015, at which Plaintiff, Mr. Duchesne, and Dr. Joseph Moisan, a second Vocational Expert, appeared and testified. AR 72.

         On December 23, 2015, the ALJ found Plaintiff was not disabled within the meaning of Sections 216(i) and 223(d) of the Social Security Act. AR 61. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on April 20, 2016, making that decision the final decision of the Commissioner of Social Security (the “Commissioner”). See AR 1, 20 C.F.R. § 404.981, § 416.1481. On June 17, 2016, Plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision.

         Plaintiff argues the denial of benefits should be reversed and remanded for further proceedings, because the ALJ: 1) failed to resolve an ambiguity in the medical evidence by obtaining an additional consultative examination; 2) improperly found Plaintiff did not meet the requirements of a Listing; 3) improperly discounted Plaintiff's subjective symptom testimony; 4) failed to account for Plaintiff's chronic pain in the residual functional capacity (“RFC”); and 5) failed to support his finding at Step Five with substantial evidence. Dkt. 13, pp. 1-2.


         Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits only 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)). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such “‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).


         I. Whether the ALJ Erred by Failing to Order a Physical and Mental Consultative Examination

         Plaintiff argues the ALJ erred by failing to order physical and mental consultative examinations, or otherwise failing to call an expert in mental health to testify at a supplemental hearing. Specifically, Plaintiff argues the testimony of consulting cardiologist Dr. Alan West, M.D. at Plaintiff's first hearing created an ambiguity which triggered the ALJ's duty to develop the record. Dkt. 13, pp. 6-9.

         During Plaintiff's first hearing, the ALJ called Dr. West as a consulting medical expert witness to offer an opinion as to Plaintiff's functional limitations. AR 211-37. Of relevance to this analysis, Dr. West testified to several issues:

• Dr. West summarily opined that the significant mental health issues reflected in the medical records “may in fact be at the level of the Commissioner's . . . listings.” AR 218.
• Dr. West opined to certain exertional limitations, such as a limitation to light work with the additional restriction that Plaintiff could stand/walk no more than four hours in an eight-hour workday, and could not push, pull, or lift objects overhead. AR 220, 231.
• Dr. West opined to certain postural limitations, such as no more than occasional climbing of ramps, stairs, ladders, ropes, and scaffolds; occasional stooping, kneeling, crouching, and crawling; and no balancing. AR 220.
• Dr. West opined to certain manipulative limitations, such as occasional handling and fingering. AR 220-21.
• Throughout his testimony Dr. West also indicated he believed a consultative physical examination would clarify whether and to what extent Plaintiff's carpal tunnel syndrome would cause ...

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