United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE
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.
Court REVERSES the Commissioner's final
decision and REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
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.
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.
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,  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).
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.
The ALJ's Handling of Subpoena Request
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
Explain in narrative form the sustained
concentration and persistence capacities and/or
The claimant may have interruptions for maintaining
concentration for extended periods due to his residual
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
… 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
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 ...