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Assumpcao v. Berryhill

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

June 20, 2018

ANDREW MICHAEL ASSUMPCAO, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, 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 Consent to Proceed Before a United States Magistrate Judge, Dkt. 2). This matter has been fully briefed. See Dkts. 10, 11, 12.

         Examining psychologist, Dr. Bruce Tapper, Ph.D., diagnosed plaintiff with social phobia, panic disorder, and major depressive disorder. AR. 389-93. The Administrative Law Judge (“ALJ”) gave little weight to Dr. Tapper's opinion that plaintiff has marked and severe impairments, including plaintiff's ability to perform activities within a schedule, maintain regular attendance, communicate and perform effectively in a work setting, and complete a normal work day and work week. AR. 391. However, the ALJ erred in finding that Dr. Tapper's opinion was not consistent with plaintiff's daily activities and the treatment notes. This error is not harmless, because a reasonable ALJ, when fully crediting Dr. Tapper's opinion, may have included additional limitations in the RFC, and could have reached a different disability determination.

         Therefore, 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, ANDREW MICHAEL ASSUMPCAO, was born in 1988 and was 20 years old on the alleged date of disability onset of December 20, 2008. See AR. 172-79. Plaintiff has attended college but has no degree. AR. 34, 453. Plaintiff worked briefly as a courtesy clerk as a summer job but quit when he went to school. AR. 42 According to the ALJ, plaintiff has at least the severe impairments of “ulcerative colitis, interstitial cystitis, anxiety disorder, and affective disorder (20 CFR 404.1520(c) and 416.920(c)).” AR. 433.

         At the time of the hearing, plaintiff was living with his parents. AR. 41-42.

         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. 64, 75, 76. Plaintiff's requested hearing was held before ALJ Tom L. Morris on May 8, 2014. See AR. 32-63. On December 22, 2014, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 15-31. Following a stipulated remand in this Court, AR. 498-99, a second hearing was held before ALJ Morris on February 28, 2017, AR. 451-74, and a second written decision concluding plaintiff was not disabled was issued on August 19, 2017, AR. 427-50.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) did the ALJ err by improperly assessing the medical evidence; (2) did the ALJ reject plaintiff's statements without providing “clear and convincing” reasons; (3) did the ALJ err by rejecting statements provided by plaintiff's mother; (4) did the ALJ consider all of plaintiff's limitations and all of the evidence when assessing plaintiff's residual functional capacity (“RFC”). See Dkt. 10 at 1.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         1. Did the ALJ err by improperly assessing the ...


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