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Day v. Berryhill

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

February 2, 2018

BRANDON DAY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

          J. Richard Creatura, United States Magistrate Judge.

         This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed. See Dkt. 13, 14, 15.

         Plaintiff testified that he cannot work due to a combination of psychological impairments. See AR. 47, 59-62. Examining physician Dr. David Mashburn, Ph.D. diagnosed plaintiff with panic disorder, possible post-traumatic stress disorder (“PTSD”), major depression and probable borderline personality disorder. AR. 453, 597. Dr. Mashburn opined that plaintiff would be unable to communicate and perform effectively in a work setting, complete a normal workday and workweek, or maintain appropriate behavior in a work setting. AR. 452-58, 596-603. Dr. Mashburn opined that plaintiff would have very significant limitations in his ability to perform activities within a schedule, maintain regular attendance, and ask simple questions or request assistance. Id.

         The Administrative Law Judge (“ALJ”) rejected Dr. Mashburn's opinion that plaintiff would be unable to communicate and perform effectively and maintain appropriate behavior in a work setting. AR. 26. However, the ALJ erred in finding that Dr. Mashburn's opinion was not consistent with his findings and the overall treatment record. Moreover, the ALJ's finding that plaintiff engaged in drug seeking activity or secondary gain is not supported by substantial evidence. This error is not harmless, because had the ALJ properly considered Dr. Mashburn's opinion, he may have included additional limitations in the residual capacity finding (“RFC”) and in the hypothetical questions posed to the vocational expert (“VE”).

         Therefore, the undersigned recommends that this matter be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion.

         BACKGROUND

         Plaintiff, BRANDON DAY, was born in 1976 and was 45 years old on the alleged date of disability onset of July 2, 2012. See AR. 219-227. Plaintiff graduated from high school, and went to college for two years but did not receive a degree. AR. 41. Plaintiff has work history in sign company production. AR. 245. In his last job, plaintiff stopped going in because of panic attacks and they let him go. AR. 42-43.

         According to the ALJ, plaintiff has at least the severe impairments of “anxiety disorder; affective disorder; and borderline personality disorder (20 CFR 404.1520(c) and 416.920(c)).” AR. 20.

         At the time of the hearing, plaintiff was homeless, staying at a shelter. AR. 39.

         PROCEDURAL HISTORY

         Plaintiff's applications for disability insurance (“DIB”) benefits 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. AR. 75-90, 91-106, 109-26, 127-44. Plaintiff's requested hearing was held before ALJ Wayne N. Araki on August 27, 2015. See AR. 35-72. On November 24, 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. 15-34.

         On March 10, 2017, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review. AR. 1-4; see 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in May, 2017. Dkt. 3. Defendant filed the sealed administrative record regarding this matter (“AR.”) on July 10, 2017. Dkt. 9.

         In plaintiff's Opening Brief, plaintiff raises the following issue: Whether the ALJ properly considered the opinions of Sarah Matlock, M.S.W.; Meg Strader; and David Mashburn, Ph.D., and the statements of plaintiff's mother Louise Salander, when the ALJ concluded plaintiff had only moderate limitations in social functioning and could have occasional interactions with co-workers and would have no difficulties with supervisors. See Dkt. 13 at 1.

         STANDARD ...


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