United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE
seeks review of the denial of her application for Disability
Insurance Benefits. Plaintiff contends the administrative law
judge (“ALJ”) erred by finding that Plaintiff did
not meet or equal Listing 1.02 or Listing 8.04, rejecting the
opinion of the testifying Orthopedic Medical Expert Dr.
Hansen regarding Plaintiff's left upper extremity,
rejecting or ignoring opinions by Plaintiff's treating
physician Dr. Caulkin, and rejecting Plaintiff's
testimony regarding the severity of her symptoms. (Dkt. # 12
at 1-2.) As discussed below, the Court REVERSES the
Commissioner's final decision and REMANDS the matter for
further administrative proceedings under sentence four of 42
U.S.C. § 405(g).
was born in 1970, has a high school education, and previously
worked a composite job as a grocery clerk and stock clerk at
Safeway for twenty-four years. AR at 41-42, 55-65, 128, 141,
March 11, 2014, Plaintiff applied for benefits, alleging
disability as of September 7, 2013. AR at 31. Her date last
insured is December 31, 2018. Id. at 33.
Plaintiff's application was denied initially and on
reconsideration, and she requested a hearing. Id.
Five separate hearings were scheduled relating to this
application. Specifically, a hearing scheduled for March 3,
2016 was continued to allow the ALJ more time to review the
evidence that was submitted by Plaintiff's advocate
shortly before the hearing. Id. at 157-68. During a
hearing held on May 17, 2016, Plaintiff and a Vocational
Expert (“VE”) both testified. Id. at
121-56. However, on October 18, 2016, a third hearing was
scheduled to allow the ALJ to obtain supplemental testimony
from a Medical Expert (“ME”) regarding
Plaintiff's orthopedic impairments. Although the ME
appeared, the hearing was not held because the ME had not
reviewed the DDS explanation by Dr. Drew Stevick dated
November 27, 2014 and the ALJ wished for him to review that
opinion prior to reaching his conclusions. Id. at
110-20. On February 14, 2017, a fourth hearing had to be
rescheduled after the ME once again did not review the DDS
explanation before the hearing. Id. at 97-109.
Finally, a different ME, Dr. Hansen, participated in a fifth
and final hearing on July 17, 2014. Id. at 51-96.
The ALJ issued a decision finding Plaintiff not disabled on
August 2, 2017. Id. at 28-43.
the five-step disability evaluation process,  the ALJ found:
Step one: Plaintiff has not engaged in substantial gainful
activity since September 7, 2013, the alleged onset date.
Step two: Plaintiff has the following severe impairments:
dysfunction of the major joints, diabetes mellitus, asthma,
obesity, essential hypertension, chronic infections of the
skin or mucous membranes, peripheral neuropathy, affective
disorders, and anxiety disorders.
Step three: These impairments do not meet or equal the
requirements of a listed impairment.
Residual Functional Capacity: Plaintiff can perform sedentary
work, except she can lift and/or carry 20 pounds occasionally
and 10 pounds frequently. She can stand and/or walk (with
normal breaks) for a total of about 2 hours in an 8-hour
workday. She can sit (with normal breaks) for a total of
about 6 hours in an 8-hour workday. She can frequently
balance, stoop, and crouch. She can occasionally climb ramps
and stairs. She can never climb ladders, ropes, and
scaffolds. She can never squat. She should avoid concentrated
exposure to extreme cold, extreme heat, hazards, and
vibration. She can have occasional right overhead reaching
and frequent right reaching in other directions. She can have
no exposure to prolonged loud noises without medically
approved ear protection. She should avoid even moderate
exposure to fumes, odors, dusts, and gases. She is capable of
simple routine work tasks and some detailed tasks with
customary breaks and lunch. She would be off-task ten percent
of the time.
Step four: Plaintiff cannot perform past relevant work.
Step five: As there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform,
Plaintiff is not disabled.
AR at 28-50.
Appeals Council denied Plaintiff's request for review,
the ALJ's decision is the Commissioner's final
decision. AR at 1-6. Plaintiff appealed the final decision of
the Commissioner to this Court. (Dkt. # 4.)
42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits when
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 (9th Cir.
2005). As a general principle, an ALJ's error may be
deemed harmless where it is “inconsequential to the
ultimate nondisability determination.” Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited
sources omitted). The Court looks to “the record as a
whole to determine whether the error alters the outcome of
the case.” Id.
evidence” is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989). The ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and resolving any
other ambiguities that might exist. Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the
Court is required to examine the record as a whole, it may
neither reweigh the evidence nor substitute its judgment for
that of the Commissioner. Thomas v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002). When the evidence is
susceptible to more than one rational interpretation, it is
the Commissioner's conclusion that must be upheld.
The ALJ Erred by Failing to Articulate Any Reasons for
Rejecting the Medical Expert's Opinion that
Plaintiff's Knee Impairment Equals Listing 1.02A
Dr. Hansen's ...