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Duggan v. Berryhill

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

November 13, 2017

BENJAMIN DUGGAN, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER REVERSING AND REMANDING

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

         Benjamin Duggan seeks review of the denial of his applications for disability insurance benefits and supplemental security income. He contends the Administrative Law Judge (“ALJ”) erred when he: (1) failed to subpoena state agency consultant Matthew Comrie, Psy.D.; (2) improperly weighed the medical opinions of examining psychologist Terilee Wingate, Dr. Brent Packer, and state agency psychological consultant Matthew Comrie, Psy.D., and (3) improperly rejected Mr. Duggan's testimony. Dkt. 11.

         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

         Mr. Duggan was born in 1983 and was 30 years old at the time of his alleged onset date of May 1, 2013. Tr. 310. He suffers from mental and physical impairments which he claims prevent him from returning to sustained, competitive, full-time employment. Mr. Duggan has not worked since October 31, 2012, but has been attending Evergreen State College since the winter of 2013, although he reports difficulty in maintaining regular attendance due to medical appointments and frequent anxiety attacks. Tr. 330-332; 859.

         Mr. Duggan protectively filed Title II and Title XVI applications on July 9, 2013, with an alleged onset date of May 1, 2013. Tr. 290. Medical opinions issued from the state agency and in consultative examinations found that Mr. Duggan would have significant limitations in areas such as maintaining a schedule and attendance, completing a normal workday or work week without psychological interruption, and interruptions in maintaining concentration for extended periods. Tr. 444-445, 717-718, 860. A physical consultative examination found only non-exertional limitations and the state agency determined he would be limited to medium exertion. Tr. 442-444, 867-868.

         Mr. Duggan's case proceeded to a hearing before ALJ David Johnson on July 20, 2015. Tr. 290, 323-383. Utilizing the five-step disability evaluation process, [1] the ALJ found Mr. Duggan's severe impairments included Obesity, Psoriasis, Neck Pain from Degenerative Disc Disease, Panic Disorder, Major Depressive Disorder, and a history of alcohol abuse. Tr. 293 (September 18, 2015 Decision).

         The ALJ determined that Mr. Duggan had the Residual Functional Capacity (RFC) to perform a full range of work at all exertional levels with several non-exertional limitations. Tr. 299. At steps four and five, the ALJ found that these limitations would still allow Mr. Duggan to perform his past work as a painter, and the additional identified occupations of janitor, hotel/motel housekeeper, and hand packager. Tr. 310-313. Mr. Dugan's request for review was denied. Tr. 5-8.

         DISCUSSION

         A. The ALJ's Handling of Subpoena Request

         At the hearing, Mr. Duggan's attorney asked the ALJ to subpoena state agency consultant Matthew Comrie, Psy. D. so that he could provide further explanation for his December 6, 2013 Disability Determination Explanation (DDE). Tr. 372. This request arose after Mr. Duggan's attorney attempted to question the Vocational Expert (VE) with language contained in a printed question on the DDE. The relevant questions and Dr. Comrie's responses are shown in pertinent part here:

The questions below help determine the individual's ability to perform sustained work activities. However, the actual mental residual functional capacity assessment is recorded in the narrative discussion(s), which describes how the evidence supports each conclusion.
. . .
The ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.Moderately limited

Explain in narrative form the sustained concentration and persistence capacities and/or limitations

The claimant may have interruptions for maintaining concentration for extended periods due to his residual sxs

Tr. 444-445 (underlining added). When counsel presented the VE with a hypothetical using the term “without an unreasonable number and length of rest periods, ” the ALJ disallowed the questioning because the word “unreasonableness” lacked a quantifiable degree of limitation:

… So, if you think that there is a degree of limitation that the evidence supports, feel free to ask her about that degree of limitation. But, I'm not going to allow you to ask about general things like unreasonableness. Even though it might be in the record, that isn't a quantifiable degree of limitation that gives us any understanding. …
I'm not going to let you ask about a term that I don't know what it means because that's not going to lead to useful evidence that helps the judge fairly. The purpose of your questioning is to help me understand Dr. Duggan's condition and help me understand how that might relate to work-related issues. So, you got to ask something that's going to end up to get me to understand what it means. If you ask if it's reasonable, all I'm getting then is an unknown basis for the judgment of reasonableness and that's not the proper function of any witness.

Tr. 370-72. Mr. Duggan's attorney then made a motion to subpoena Dr. Comrie “to present him new questions that have real specific vocational language because … DDS working with the agency gave him these questions and if they're no good, then I can't use his statements.” Tr. 372. In his written opinion, the ALJ explained why he decided the subpoena was not necessary:

At the hearing, the claimant, through his representative, requested a subpoena for Matthew Comrie, Psy.D., the state consultant who evaluated the claimant's records at the reconsideration level in December 2013. This subpoena was not requested 5 days prior to the hearing pursuant to 20 CFR Sections 404.950(d)(2) and 416.1450(d)(2). Additionally, the testimony of Dr. Comrie is not reasonably necessary for the full presentation of the case since additional evidence after his evaluation provides ...

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