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Nelson v. Berryhill

United States District Court, W.D. Washington

December 20, 2017

NICOLE NELSON, 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. 3; Consent to Proceed Before a United States Magistrate Judge, Dkt. 4). This matter has been fully briefed. See Dkt. 9, 10, 11.

         After considering and reviewing the record, the Court concludes that the ALJ erred at the final step of the sequential disability determination when she found that plaintiff could perform other work existing in the national economy. When making this finding, the ALJ relied on a finding from a vocational expert (“VE”) that plaintiff's past relevant work (“PRW”) as a laboratory technician required the skills of “analyzing statistical data to prepare reports” when substantial evidence fails to support such a finding. AR. 679. Plaintiff's testimony reveals that her PRW involved only gathering data, not analyzing data.

         Therefore, this matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order.

         BACKGROUND

         Plaintiff, NICOLE NELSON, was born in 1953 and was 55 years old on the amended alleged date of disability onset of July 17, 2008. See AR. 309-11, 692. Plaintiff completed college with a degree in biology. AR. 697. Plaintiff has work history as a research technician in molecular biology. AR. 131.

         According to the ALJ, through the date last insured, plaintiff had at least the severe impairments of “fibromyalgia, carpal tunnel syndrome (CTS), and asthma (20 CFR 404.1520(c)).” AR. 672.

         PROCEDURAL HISTORY

         Plaintiff's application for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following reconsideration. See AR. 169, 170. Over the past nine years plaintiff has had three hearings and three unfavorable decisions (see AR. 8-27, 28-124, 125-68, 172-92, 666-88, 689-733). Plaintiff's most recent hearing was held before Administrative Law Judge Kimberly Boyce (“the ALJ”) on December 6, 2016. See AR. 689-733. On March 22, 2017, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 666-88.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ met her burden of showing that there were other jobs in the national economy that plaintiff could perform by relying on vocational expert (VE) testimony regarding transferable skills that conflicted with plaintiff's pre and post hearing testimony; and (2) Whether this case should be remanded for a finding of disability and award of benefits. See Dkt. 9, pp. 1-2.

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

         DISCUSSION

         (1) Did the ALJ meet her burden at step five of showing that there were other jobs in the national economy that plaintiff could perform by relying on vocational expert (VE) testimony regarding transferable skills ...


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