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Kerley v. Berryhill

United States District Court, W.D. Washington

July 24, 2017

TIMOTHY KERLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, 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. 3; Consent to Proceed Before a United States Magistrate Judge, Dkt. 5). This matter has been fully briefed. See Dkt. 10, 14, 15 Plaintiff is a veteran and was injured in a motor vehicle accident on the battlefield. See AR. 825. Since then, plaintiff has suffered from “widespread pain, myalgias, fatigue, diffuse tenderness, morning stiffness, headaches, and early awakenings.” Id. An examining physician has opined that these symptoms are attributable to the diagnosis of fibromyalgia. See id.

         The ALJ found that plaintiff's fibromyalgia is not a medically determinable impairment. See AR. 31. However, after considering and reviewing the record, the Court concludes that the ALJ's findings regarding plaintiff's fibromyalgia are not based on substantial evidence in the record as a whole. The ALJ found that the physician who diagnosed fibromyalgia relied solely on plaintiff's report, did not perform an examination, and did not observe or record any tender point findings. Id. Although these findings may have been appropriate based on the record that was before the ALJ, plaintiff subsequently submitted new evidence to the Appeals Council, which this Court must take into consideration when determining whether or not the ALJ's findings in his written decision are based on substantial evidence in the record as a whole. Because this new evidence demonstrates that the physician did indeed perform an examination, noted relevant fibromyalgia related symptoms, and observed 12 bilateral tender points, the findings relied on by the ALJ when evaluating plaintiff's fibromyalgia are not based on substantial evidence in the record as a whole. However, this matter should be remanded for further administrative proceedings, allowing the Administration the opportunity to evaluate plaintiff's fibromyalgia in the first instance, based on a full record.

         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 consistent with this order.

         BACKGROUND

         Plaintiff, TIMOTHY J. KERLEY, was born in 1965 and was 54 years old on the alleged date of disability onset of June 13, 2015. See AR. 187-88. Plaintiff has work experience as a bus driver, aerospace instructor, aerospace machinist, delivery driver and police officer/engineer in the U.S. Army. AR. 261-72.

         According to the ALJ, plaintiff has at least the severe impairments of “lumbar degenerative disk disease and right shoulder degenerative joint disease (20 CFR 404.1520(c)).” AR. 31.

         At the time of the hearing, plaintiff was living with his wife in their home. AR. 56-57.

         PROCEDURAL HISTORY

         Plaintiff's application for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 423 (Title II) was denied initially and following reconsideration. See AR. 100, 115. Plaintiff's requested hearing was held before Administrative Law Judge Glenn Meyers (“the ALJ”) on February 2, 2016. See AR. 51-99. On July 25, 2016, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 25-50.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ properly concluded that fibromyalgia and IBS were not medically determinable impairments; (2) Whether the ALJ provided clear and convincing reasons for rejecting plaintiff's testimony; (3) Whether the ALJ provided legally sufficient reasons for rejecting medical source opinions; (4) Whether the ALJ provided legally sufficient reasons for rejecting plaintiff's VA disability rating; (5) Whether the ALJ provided germane reasons for rejecting the lay testimony; and (6) Whether the ALJ erred in finding that plaintiff could return to his past relevant work as a school bus driver. See Dkt. 10, 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 ...


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