United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
Richard Creatura, United States Magistrate Judge
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.
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.
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
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.
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)).”
time of the hearing, plaintiff was living in a house with his
wife. AR. 42-44.
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.
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.
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 ...