United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
A. TSUCHIDA United States Magistrate Judge.
Hardtke appeals the ALJ's decision finding him not
disabled. The ALJ found Mr. Hardtke was working at the time
of the administrative hearing, but this work was not
substantial gainful activity; mild cerebral palsy, gout,
varicose veins, right hammertoe, obesity, lower extremity
edema, cardiomegaly, ventricular hypertrophy, hypertension,
and organic mental disorder are severe impairments; Mr.
Hardtke has the residual functional capacity
(“RFC”) to perform less than the full range of
light work subject to a number of postural, environmental,
and mental or non-exertional limitations; Mr. Hardtke cannot
perform his past relevant work; and Mr. Hardtke is not
disabled because he can perform other jobs in the economy.
Hardtke contends the ALJ misevaluated certain medical
opinions, his testimony and the lay testimony and also
harmfully erred at step-five. Dkt. 11 at 2. As discussed
below, the Court concludes the ALJ harmfully erred and
REVERESES the Commissioner's final
decision and REMANDS the case for further
proceedings under sentence four of 42 U.S.C. § 405(g).
Hardtke contends he ALJ misevaluated the opinions of
examining doctors Gary Gaffield, D.O., and Michelle
Langhofer, Ph.D. He also argues post-hearing medical evidence
submitted to the Appeals Council mandates reversal and remand
for further proceedings.
Gaffield performed a physical examination of Mr. Hardtke in
December 2011, and opined “he would benefit by having
his feet elevated.” Tr. 540-45. The ALJ gave
significant weight to Dr. Gaffield's opinion, but did not
find Mr. Hardtke required elevation of his feet on the
grounds Dr. Gaffield did not state “elevation was a
necessity.” Tr. 41. Additionally, the ALJ noted Mr.
Hardtke indicated “throughout the record and in his
hearing testimony that as long as he wears his compression
stockings and is not on his feet for long periods of time he
does not experience swelling.” Tr. 41.
Hardtke argues the ALJ's interpretation of Dr.
Gaffield's opinion “fails to account for [his] need
to elevate his feet while seated, in order to relieve
swelling.” Dkt. 11 at 4. However, Dr. Gaffield never
opined Mr. Hardtke needed to elevate his feet.
Rather the doctor opined Mr. Hardtke would benefit
from elevating his feet. This distinction is critical because
an ALJ need not account for a limitation stated in a medical
opinion as a recommendation, rather than an imperative.
See Rounds v. Comm'r of Social Sec. Admin., 807
F.3d 996, 1006 (9th Cir. 2015) (citing Carmickle v.
Comm'r of Social Sec. Admin., 533 F.3d 1155, 1165
(9th Cir. 2008)). Given the language Dr. Gaffield used, the
Court cannot say it was unreasonable for the ALJ to omit the
“elevation” recommendation from Mr. Hardtke's
RFC, on the grounds that elevation was not a required
Langhofer performed a psychological assessment of Mr. Hardtke
in April 2014. Tr. 618-24. The doctor noted the psychological
and cognitive test results were invalid due to suspicions
that Mr. Hardtke was intoxicated, Tr.620-21, and that Mr.
Hardtke might be malingering. Tr. 621. Dr. Langhofer
the claimant is difficult to impossible to diagnose at this
time because of grave concerns regarding participation and
intoxication. There appears to be a concerning variability
between the claimant's 12/2013 psychological evaluation,
his aunt's SSI/SSA letter, and his present evaluation
. . . .
The claimant may have the disorders claimed for the present
evaluation (intellectual delay, development disability,
depression) further assessment with different measures with
another psychologist may be appropriate. However, assessment
for chemical dependency/abuse may also be most appropriate at
this time. It is impossible that the claimant was on
prescribed medications (that had some unknown impact on
mental status) or ...