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Ware v. Berryhill

United States District Court, W.D. Washington

April 20, 2017

AUDREY GRACE WARE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1]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. 7; Consent to Proceed Before a United States Magistrate Judge, Dkt. 8). This matter has been fully briefed. See Dkts. 13, 14.

         After considering and reviewing the record, the Court concludes that the ALJ erred when evaluating the medical opinion from one of plaintiff's treating physicians. The ALJ appears to have misinterpreted the record, as the ALJ found that Dr. Hatcher “did not perform any of the requisite testing [regarding the diagnosis of fibromyalgia]" AR. 25. However, Dr. Hatcher's treatment record indicates that she examined plaintiff and conducted palpation testing which yielded a positive result for reproduction of alleged symptoms. See AR. 425. This same treatment record also reveals that on testing, Dr. Hatcher observed “significant tenderness to palpitation throughout posterior musculature with trigger points consistent with fibromyalgia diagnosis." Id. Therefore, the ALJ's reliance on a lack of requisite testing is not based on substantial evidence in the record as a whole.

         The ALJ also relied on a finding that Dr. Hatcher relied more on plaintiff's subjective reports than on the objective evidence; however, this finding, too, is not based on substantial evidence in the record as a whole.

         Therefore, this matter shall be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order.

         BACKGROUND

         Plaintiff, AUDREY GRACE WARE, was born in 1962 and was 51 years old on the alleged date of disability onset of September 1, 2013. See AR. 204-12. Plaintiff completed high school. AR. 36. Plaintiff has work history working in restaurants and food service. AR. 52-55.

         According to the ALJ, plaintiff has at least the severe impairments of “osteoarthrosis; asthma; sleep-related disorder; obesity; affective disorder; anxiety disorder; [and] substance addiction disorder (20 CFR 416.920(c)).” AR. 18.

         At the time of the hearing, plaintiff was living in Section 8 housing. AR. 84.

         PROCEDURAL HISTORY

         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. 109, 125. Plaintiff's requested hearing was held before Administrative Law Judge Tom L. Morris (“the ALJ”) on December 30, 2014. See AR. 33-108. On March 27, 2015, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 13-32.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) The ALJ's residual functional capacity finding is unsupported by substantial evidence and the product of legal error in that the ALJ failed to provide specific and legitimate reasons for discounting several medical opinions; and (2) The ALJ failed to meet his burden at Step 5 in that his colloquy with the VE failed to account for plaintiff's medically required cane. See Dkt. 13, 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 ...


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