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Smith v. Berryhill

United States District Court, W.D. Washington

October 25, 2017

JOEL SMITH, 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. 5; Consent to Proceed Before a United States Magistrate Judge, Dkt. 8). This matter has been fully briefed. See Dkts. 17, 21, 22.

         After considering and reviewing the record, the Court concludes that the Social Security Administration (“SSA” or “Agency”) erred by failing to follow the Court's prior Order to obtain further review of plaintiff's records by internal medical experts. As a result, the record is incomplete, and the Court cannot determine whether the ALJ's decision at Step Three is supported by substantial evidence. In addition, the ALJ failed to fully analyze and develop the record regarding (1) whether plaintiff's IQ score supports subaverage intellectual functioning prior to the age of 22; or (2) whether the record supports a finding that plaintiff had deficits in adaptive functioning initially manifested before the age of 22.

         Because this error is not harmless, this matter should be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and remanded to the Acting Commissioner for further consideration consistent with this Order.

         BACKGROUND

         Plaintiff, JOEL SMITH, was born in 1956 and was 49 years old on the alleged date of disability onset of January 1, 2005. See AR. 207-08, 209-14. Plaintiff quit school in the seventh or tenth grade and later started training for welding with Jobs Corp, but did not finish. AR. 553-54. Plaintiff has some experience packing auto parts and doing landscaping and janitorial work. AR 556-58.

         According to the ALJ, as of the latest hearing, plaintiff has at least the severe impairments of “cervical and lumbar spine degenerative disc disease, hepatitis, major depressive disorder versus mood disorder not otherwise specified (NOS) versus alcohol induced mood disorder, anxiety versus posttraumatic stress disorder (PTSD), borderline intellectual functioning, and alcohol abuse (20 CFR 416.920(c)).” AR. 521.

         At the time of the hearing, plaintiff was living in an apartment. AR. 555-56.

         PROCEDURAL HISTORY

         Plaintiff's applications for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and following reconsideration. See AR. 82, 83, 98, 99. Plaintiff's first hearing (AR. 34-73) resulted in a decision that he was not disabled (AR. 9-33). Plaintiff appealed and the Court remanded for further administrative proceedings (AR. 631-43). Plaintiff's second hearing was again held before Administrative Law Judge Larry Kennedy (“the ALJ”) on June 1, 2015. See AR. 544-93. On June 17, 2016, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. AR. 515-43.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) While the ALJ found that plaintiff has an IQ of 70 and additional severe impairments, two key elements of Listing 12.05(C), he failed to correctly analyze plaintiff's deficits of adaptive functioning that manifested before the age of 22; (2) The recent change in Listing 12.00 has no bearing here; and (3) Remand for a finding of disability and calculation of benefits is appropriate here. See Dkt. 17, p. 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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