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O'Neill v. Berryhill

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

June 22, 2018

NEVA THERESE O'NEILL, 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. 3). This matter has been fully briefed. See Dkt. 8, 9, 10.

         After reviewing and considering the record, the Court concludes the ALJ erred in failing to assign controlling weight to the treating physician's opinion pursuant to 20 C.F.R.§ 416.927. Treating rheumatologist, Dr. James Nakashima, diagnosed the plaintiff with fibromyalgia. See AR.18. The ALJ assigned little weight to Dr. Nakashima's medical opinion because it was not consistent with or supported by the overall medical evidence of record, because Dr. Nakashima's notes report improvement and stability in the condition, and because Dr. Nakashima appears to rely exclusively on anecdotal claims while failing to order necessary testing. AR. 30. This Court finds that the ALJ did not offer specific and legitimate reasons in assigning little weight to Dr. Nakashima's opinion. The ALJ's analysis of the record appears to amount to cherry-picking wherein he identifies evidence to support a non-disability finding while overlooking evidence favorable to the plaintiff. This is not harmless error because a reasonable ALJ, when granting controlling weight to Dr. Nakashima's opinion, may have added additional limitations to the plaintiff's residual functional capacity and reached a different disability determination.

         This matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.

         BACKGROUND

         Plaintiff, NEVA THERESE O'NEILL, was born in 1977 and was 34 years old on the alleged date of disability onset of June 23, 2012. See AR. 266-71. Plaintiff has completed some college courses. AR. 63-64. Plaintiff has work experience as a security guard, travelling with a carnival, working in a fish cannery, as a receptionist, a bartender, and in a fast food restaurant. AR. 64-65.

         According to the ALJ, plaintiff has at least the severe impairment of “fibromyalgia (20 CFR 416.920(c).” AR. 18.

         At the time of the hearing, plaintiff was living with her two young children and the children's father. AR. 46-47.

         PROCEDURAL HISTORY

         Plaintiff's application for Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following reconsideration. See AR. 82-89, 92-101. The Appeals Council vacated the hearing decision from plaintiff's first hearing. See AR. 60-81, 102-18, 119-24. Plaintiff's second hearing was held before Administrative Law Judge Steve Lynch (“the ALJ”) on June 14, 2016. See AR. 38-59. On July 25, 2016, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See AR. 12-37.

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) The ALJ improperly rejected the opinion of James Nakashima, M.D.; (2) The ALJ improperly rejected the lay witness testimony; and (3) The ALJ improperly rejected the plaintiff's testimony. See Dkt. 8, p. 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 ...


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