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Nelson v. Berryhill

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

January 12, 2018

JEFFREY 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. 5). This matter has been fully briefed. See Dkt. 10, 11, 12.

         After considering and reviewing the record, the Court concludes that the Administrative Law Judge (“ALJ”) erred by failing his duty to develop the record by not obtaining plaintiff's treatment records from his treating physician. As plaintiff was not represented by counsel at his Administrative hearing, the ALJ had a special duty “to assure that the claimant's interests are considered.'” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). This, the ALJ did not do.

         Therefore, the Court concludes that this matter is 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, JEFFREY NELSON, was born in 1961 and was 46 years old on the alleged date of disability onset of October 31, 2007. See AR. 126-32. Plaintiff completed the ninth grade and later obtained his GED. AR. 37. Plaintiff has work experience in apartment maintenance. AR. 39-41, 165-76. He left his employment when he had surgery. AR. 41.

         According to the ALJ, plaintiff has at least the severe impairments of “degenerative disc disease and degenerative joint disease of the cervical spine (20 CFR 404.1520(c)).” AR. 23.

         At the time of the hearing, plaintiff was living in a house with his wife. AR. 42-44.

         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. 74-76, 79-80. Plaintiff's requested hearing was held before ALJ Gary Elliott on November 18, 2015. See AR. 32-53. On December 8, 2015, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 18-28.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) the ALJ erred in failing to develop the record given the plaintiff's unrepresented status and the missing evidence; and (2) the ALJ erred in evaluating plaintiff's credibility. See Dkt. 9 at 1.

         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 ...


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