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Perkins v. Berryhill

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

October 2, 2017

STEPHEN PERKINS, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER REVERSING AND REMANDING

          BRIAN A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Stephen Perkins seeks review of the denial of his application for Supplemental Security Income and Disability Insurance Benefits. Mr. Perkins initially argued the Administrative Law Judge (“ALJ”) erred by failing to properly address: (1) medical opinions of his chiropractor and physical therapist; (2) medical evidence from his treating surgeons; and (2) his credibility. Dkt. 12. The Commissioner agrees the ALJ committed harmful error when he failed to properly address the opinions of the chiropractor and physical therapist and seeks remand for further administrative proceedings as to that issue only. Dkt. 15. In response, Mr. Perkins argues that two issues remain: (1) whether the ALJ erred in discounting his credibility, and (2) whether an award of benefits is proper.[1] Dkt. 16 at 1; 5-9.

         The Court REVERSES the Commissioner’s final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         Stephen Perkins filed an application for Title II disability benefits on April 15, 2013. Tr. 131-132. The alleged onset date of disability was January 23, 2005. Tr. 131. The date last insured (“DLI”) on his earnings record was December 31, 2009. Tr. 136. The application was denied and he requested a hearing before an ALJ. Tr. 8. After a hearing on May 18, 2015, an unfavorable decision was entered August 28, 2015. Tr. 16. On January 13, 2017, the Appeals Council denied Mr. Perkins’s request for review.

         Utilizing the five-step disability evaluation process (20 C.F.R. §§ 404.1520, 416.920), the ALJ found Mr. Perkins did not engage in substantial gainful activity from January 23, 2005, through December 31, 2009, and that prior to his DLI, Mr. Perkins had severe impairments, including: degenerative disc disease, with radiculopathy, status post decompression surgeries. Tr. 18. Mr. Perkins previously worked as a timber faller. Tr. 58. He was 42 years old in December 2009. No medical expert testified during the May 2015 hearing. Tr. 34. On June 14, 2014, the Washington State Industrial Insurance agency determined Mr. Perkins was permanently totally disabled. Tr. 671.

         The ALJ found that Mr. Perkins could not perform his past work but could do other work, based on the following assessment of residual functional capacity to perform:

Sedentary work as defined in 20 CFR 404.1567(a) except the claimant could occasionally climb, stoop, and crawl. He could frequently kneel and crouch. He should have not worked around wetness or vibration. During an eight hour day he could sit four hours and stand and walk four hours. He needed a sit-stand option, where he could sit for 25 minutes at a time, and then stand or walk for 25 minutes at a time.

Tr. 19. Based on the testimony of a vocational expert (“VE”), the ALJ concluded that jobs existed in the national economy for a person of Mr. Perkins’ age, education, work experience and residual functional capacity such as assembly (D.O.T. 726.685-066) (1,000 regional jobs and 100,000 national jobs); material handler (D.O.T. 726.687-030) (800 regional jobs and 80,000 national jobs); cashier (D.O.T. 211.462.010) (1,000 regional jobs and 100,000 national jobs) (although classified by the D.O.T. as “light,” the VE testified the occupation can be performed at the sedentary level). Tr. 25.

         DISCUSSION

         A. Agreement of Error – Opinions of Dr. Fleet and Chiropractor Boney

         The Commissioner concedes the ALJ erred when he failed to consider an April 2015 opinion from Mr. Perkins’ chiropractor, Clinton W. Van Fleet, D.C. (Tr. 856–59). Dkt. 15 at 2. The ALJ discounted the opinion because it postdated the DLI by several years and it conflicted with medical opinions and objective medical evidence. Tr. 24. However, because the opinion expressly noted limitations applying back to 2015 (Tr. 859) and contained a detailed assessment of Mr. Perkins’s functioning (Tr. 856–59), the ALJ should have addressed the opinion.

         The Commissioner also concedes the ALJ did not properly address the opinions of Bob Boney, a physical therapist who evaluated Mr. Perkins in March 2006 (Tr. 520-27) and in May 2009 (Tr. 602-09). Although the March 2006 evaluation stated Mr. Perkins could perform medium work (Tr. 526) (described as less restrictive than the residual functional capacity), the ALJ failed to address the specific functional limitations found by Mr. Boney. For example, Mr. Boney determined that although Mr. Perkins could work an eight-hour day, he can only sit for a maximum of two hours, stand for a maximum of three hours, and walk for a maximum of three hours. Tr. 524. In contrast, the ALJ found Mr. Perkins is capable of sitting for four hours and standing or walking for four hours. Tr. 19. The ALJ also did not address Mr. Boney’s May 2009 evaluation, which referred to even greater restrictions. Tr. 605–09.

         The parties do not disagree that the ALJ committed harmful error, but disagree on the remedy. The Commissioner argues that the case should be remanded for further administrative proceedings and Mr. Perkins argues that the case is appropriate for immediate payment of benefits. For the reasons discussed more fully below, the ...


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