United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON PLAINTIFF'S
Richard Creatura, United States Magistrate Judge.
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.
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
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”).
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
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.
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.
time of the hearing, plaintiff was homeless, staying at a
shelter. AR. 39.
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.
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.
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.