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Pennington v. Berryhill

United States District Court, W.D. Washington

January 22, 2018

DAVID PENNINGTON, 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. 5; Consent to Proceed Before a United States Magistrate Judge, Dkt. 6). This matter has been fully briefed. See Dkt. 11, 16, 17.

         As diagnosed by one of plaintiff's examining doctors, plaintiff has post-traumatic stress disorder (“PTSD”). AR. 1012. According to the record from this examining psychologist, Dr. Richard Coder, Ph.D., plaintiff's history includes being “an eyewitness of the 9-11 terrorist attack [as he] was on the ground floor of the first building as it began to topple.” AR. 1009. Plaintiff witnessed people jumping from the windows and falling to the ground, and “watched the plane fly over the Hudson, turning back and forth until it flew in the second tower.” Id. He lost neighbors and crew on flight 93. Id. Plaintiff did not seek treatment until August 2003 when he had a panic attack and could not breathe, and in September, 2007, he was asked to speak at a media event as a survivor of 9-11, which sent him into a downward spiral. Id. Although Dr. Coder opined that plaintiff would need routine breaks during the day and routine time off every week or two, such as long weekends, with “some real hand holding to help him deal with the usual stress encountered in competitive work ___ ” (AR. 1013-14), the Administrative Law Judge (“the ALJ”) gave only little weight to this opinion. AR. 23.

         After considering and reviewing the record, the Court concludes that the ALJ erred when failing to credit fully the medical opinion from plaintiff's examining psychologist, Dr. Coder. For example, although the ALJ relied on alleged inconsistencies with plaintiff's testimony, the ALJ failed to explain how plaintiff's ability to perform personal care, prepare his own meals and assist his parents contradicted Dr. Coder's opinion that he would need routine breaks during the day and routine time off every week or two. In addition, Dr. Coder was aware of plaintiff's history of substance abuse, and thus, this rationale does not provide a valid basis for failing to credit fully Dr. Coder's opinion.

         Therefore, for the reason stated and based on the record as a whole, Court concludes that this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion.

         BACKGROUND

         Plaintiff, DAVID PENNINGTON, was born in 1962 and was 44 years old on the alleged date of disability onset of January 1, 2007. See AR. 535-36, 539-45. Plaintiff completed high school and several years of college. AR. 192. He has work history as an integration specialist/manager, business services manager, software manufacturer sales engineer, business services senior manager/executive, and management consulting senior program manager/executive. AR. 727- 39.

         According to the ALJ, plaintiff has at least the severe impairments of “major depressive disorder; generalized anxiety disorder with posttraumatic stress disorder (PTSD); cocaine and opioid abuse in remission (20 CFR 404.1520(c) and 416.920(c)).” AR. 15.

         At the time of the latest hearing, plaintiff was staying with a friend and his parents. AR. 193-94.

         PROCEDURAL HISTORY

         Plaintiff's applications for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and following reconsideration. See AR. 12. Plaintiff provides the following procedural background.

A hearing was held, followed by an unfavorable decision by ALJ Laura Valente on April 23, 2010 (AR. 232-60). The Appeals Council remanded the case, after which two more hearings were held (one where the claimant testified and another where a medical expert testified), followed by another unfavorable ALJ decision by Judge Valente dated May 30, 2013 (AR 262-67, 294-330). The Appeals Council again remanded the case, after which yet another hearing was held, followed by a third unfavorable decision issued by a different ALJ . . . (AR. 12-28, 331-35).

Plaintiff's Opening Brief, Dkt. 11, p. 2.

         Plaintiff's latest hearing was held before ALJ Kimberly Boyce on June 17, 2015. See AR. 185-227. On December 22, 2015, the ALJ issued a written decision in which the ALJ concluded that plaintiff was ...


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