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Lee v. Berryhill

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

November 29, 2017

RANDAL HOWARD LEE, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge

         Plaintiff Randal Howard Lee filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 6.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in his treatment of Plaintiff's testimony and the lay witness testimony. Had the ALJ properly considered this evidence, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On November 7, 2013, Plaintiff filed applications for SSI and DIB, alleging disability as of May 2, 2012. See Dkt. 9, Administrative Record (“AR”) 18. The applications were denied upon initial administrative review and on reconsideration. See AR 18. A hearing was held before ALJ David Johnson on November 17, 2015. AR 39-100. In a decision dated December 24, 2015, the ALJ granted a partially favorable decision, finding Plaintiff disabled as of August 5, 2014. AR 18-30. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1-3; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to include in Plaintiff's RFC that he can only stand and walk for four hours of an eight-hour work day; (2) failing to provide specific, clear and convincing reasons to discredit Plaintiff's testimony; and (3) failing to give germane reasons to reject lay witness testimony. Dkt. 11, pp. 1-12.

         Because the ALJ found Plaintiff disabled as of August 5, 2014, the relevant time period for this case is the alleged onset date - May 2, 2012 - through the date prior to the finding of disability - August 4, 2014.

         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 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ properly assessed Plaintiff's RFC.

         Plaintiff first argues the ALJ erred by failing to include in the RFC a limitation that Plaintiff can only stand and walk for four hours out of an eight-hour work day.[1] Dkt. 11, pp. 3-6, 10-11; Dkt. 15, pp. 1-3. Specifically, Plaintiff argues the ALJ erred because the RFC limited Plaintiff to “light” work and under Social Security Ruling (“SSR”) 83-10, “the full range of light work requires standing or walking, off and on, for a total of approximately [six] hours of an [eight]-hour workday.” See Dkt. 11, pp. 5-6, 10-11 (citing SSR 83-10, 1983 WL 31251, at *6 (1983)).

         An RFC is “an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-9p, 1996 WL 374184, at *1 (1996). An RFC must include an individual's functional limitations or restrictions and assess his “work-related abilities on a function-by-function basis.” Id. Furthermore, an RFC must take into account all of an individual's limitations. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Thus, an ALJ errs when he provides an incomplete RFC ignoring “significant and probative evidence.” Jones v. Colvin, 2015 WL 71709, at *5 (W.D. Wash. Jan. 6, 2015) (citing Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012)).

         Notably, however, “harmless error principles apply in the Social Security context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citation omitted). An ALJ's error is harmless if it is “inconsequential” to the ALJ's “ultimate nondisability determination.” Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

         Dr. Gary Gaffield, D.O., examined Plaintiff on February 4, 2014. AR 359-64. Dr. Gaffield opined Plaintiff was limited to walking or standing for four hours in an eight-hour work day. AR 359, 363. On July 24, 2014, Dr. Gordon Hale, M.D., also opined Plaintiff was limited to walking or standing for four hours in an eight-hour work day. AR 126, 128. The ALJ discussed these doctors' findings, including each doctor's opinion that Plaintiff was limited to walking and standing for up to four hours. AR 23-24. The ALJ gave “great weight” to the opinions of Drs. Gaffield and Hale as they pertained to Plaintiff's functioning prior to August 5, 2014. AR 23-24.

         Nevertheless, the ALJ omitted from Plaintiff's RFC that he would be limited to walking or standing for four hours in an eight-hour work day. Instead, the ALJ found Plaintiff could perform “light work, ” as defined in 20 C.F.R. ...


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