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Menz v. Berryhill

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

January 5, 2018

KATRINA R. MENZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          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. 6; Consent to Proceed Before a United States Magistrate Judge, Dkt. 7). This matter has been fully briefed. See Dkt. 14, 20, 21.

         After considering and reviewing the record, the Court concludes that the ALJ erred when evaluating the medical evidence offered by examining doctor, Dr. Jennifer Irwin, M.D., and erred when failing to develop the record regarding this opinion. Simply because plaintiff is able to maintain her household work of cooking and cleaning in the presence of psychosocial situational stressors does not demonstrate that plaintiff does not have marked limitation in her ability to deal with the usual stress encountered in a competitive workplace, even in the absence of substance use.

         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.


         Plaintiff, KATRINA R. MENZ, was born in 1966 and was 23 years old on the alleged date of disability onset of August 27, 1989. See AR. 343-52. Plaintiff did not complete high school, but has obtained her GED. AR. 96. Plaintiff has some work experience as a maid, waitress and bartender. AR. 97-103.

         According to the ALJ, plaintiff has at least the severe impairments of “polysubstance abuse (marijuana, alcohol, and methamphetamine); substance induced mood disorder versus depressive features versus major depressive disorder; antisocial personality disorder; and learning disorder not otherwise specified, status post head injury (20 CFR 416.920(c)).” AR. 17.

         At the time of the hearing, plaintiff was living with her husband and 22-year old daughter in a doublewide trailer. AR. 95.


         Plaintiff's application for Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following reconsideration. See AR. 141, 152. Plaintiff's first requested hearing was held before Administrative Law Judge Rebekah Ross on April 4, 2014 (AR. 47-78) who issued a decision finding plaintiff not disabled on May 1, 2014 (AR. 163-80). Following a request for reconsideration, the Appeals Council vacated the decision and remanded the matter for further administrative proceedings (AR. 181-86). The Appeals Council expressly instructed the ALJ assigned to the matter following remand to “reconsider the opinion of Dr. Irwin (3F) by re-contacting Dr. Irwin for clarification and/or submitting the claimant for an updated evaluation, ” among other tasks. AR. 13.

         Plaintiff appeared at a hearing before Administrative Law Judge Joanne E. Dantonio (“the ALJ”) on February 22, 2016. See AR. 89-140. On July 29, 2016, the ALJ issued a written decision in which the ALJ concluded that plaintiff was disabled when substance abuse was considered but, if plaintiff stopped the substance abuse, she would not be disabled pursuant to the Social Security Act. See AR. 10-46. The ALJ declined to re-contact Dr. Irwin, and decided that the written decision could be issued without an additional consultative examination because the ALJ found that “Dr. Irwin's opinion [is] clear on its face.” AR. 14.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether the ALJ erred by failing to fully and fairly develop the record; (2) Whether the ALJ properly evaluated the medical evidence; (3) Whether the ALJ properly evaluated plaintiff's testimony; (4) Whether the ALJ properly evaluated the lay evidence; and (5) Whether the ALJ properly assessed plaintiff's residual functional capacity (“RFC”) in the absence of substance use, and erred by basing her step five finding on her erroneous RFC assessment. See Dkt. 14, p. 1.


         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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