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Debora W. v. Commissioner of Social Security

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

April 19, 2019

DEBORA W., Plaintiff,




         Plaintiff 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).


         Plaintiff 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, 159, 688.

         On 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.

         Utilizing the five-step disability evaluation process, [1] 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.[2]
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.

         As the 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.)


         Under 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.

         “Substantial 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. Id.


         A. 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

         1. Dr. Hansen's ...

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