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Hardtke v. Berryhill

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

January 22, 2018

KENNETH HARDTKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA United States Magistrate Judge.

         Kenneth 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. Tr. 31-47.

         Mr. 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).

         DISCUSSION

         A. Medical Evidence

         Mr. 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.

         1. Dr. Gaffield

         Dr. 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.

         Mr. 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 functional limitation.

         2. Dr. Langhofer

         Dr. 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 concluded:

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 ...

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