United States District Court, W.D. Washington, Tacoma
DATE: June 21, 2019
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, Sec'y of H.E.W. v. Weber, 423 U.S. 261,
271-72 (1976). See Dkt. 2. This matter has been
fully briefed. See Dkts. 10, 14, 16.
alleged disability on the basis of physical and mental
impairments including back problems, nerve injury, and anger
and aggression issues. In support of his claims, plaintiff
provided evidence including his counselor's statement
that plaintiff's aggression issues required him to be
able to “regularly” step away from work to avoid
lashing out at others. Although the ALJ found that plaintiff
only “rarely” had to step away from work, and
rejected the counselor's statement on that basis, the ALJ
then formulated an RFC that included no requirement that
plaintiff be able to step away even “rarely.” The
ALJ also ignored an orthopedic doctor's statement that
plaintiff's carpal tunnel syndrome (“CTS”)
could aggravate his cervical spinal disorder. These errors
were not harmless; however, because outstanding factual
issues remain, the undersigned recommends that this matter be
remanded for further proceedings, rather than an award of
2015, plaintiff, who was 47 years old, applied for
supplemental security income benefits under 42 U.S.C. §
1382(a) (Title XVI) of the Social Security Act. See
AR. 25, 292. Plaintiff's highest level of education was
completing the eighth grade, and he had most recently done
janitorial work. See AR. 255-56, 264. Plaintiff
alleged that he had stopped working because of mental
conditions including “Adhd, ” “bipolar,
” insomnia, depression, anxiety, anger, and aggression
and because of physical conditions including a back injury
and nerve damage. See AR. 254. The Administration
denied his applications initially and following
reconsideration. AR. 25.
November 2017, Administrative Law Judge Larry Kennedy (the
“ALJ”) found that plaintiff was not disabled
during the relevant period. See AR. 42. At step 2,
the ALJ found that plaintiff had at least the severe
impairments of degenerative disc disease of the cervical and
lumbar spine, CTS, arthritis of the right shoulder,
gastroesophageal reflex disease, bipolar versus intermittent
explosive disorder, and intellectual disability versus
learning disorder. See AR. 27- 28.
Appeals Council denied plaintiff's request for review.
AR. 1. Plaintiff then filed a complaint for judicial review
of the ALJ's decision in this Court. See Dkt. 4.
Standard of Review
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
Counselor Weeks' Opinion and the RFC
asserts that the ALJ erred when he failed to include a
limitation-that plaintiff had to leave his work station
“regularly, ” when plaintiff's anger was
triggered-recommended by plaintiff's counselor, Tim
Weeks, LMHC. See Dkt. 10, at 4.
had to provide “germane” reasons to reject the
testimony of Weeks, a licensed mental health counselor.
See Turner v. Cmm'r, 613 F.3d 1217, 1224 (9th
Cir. 2010); see also former 20 C.F.R. §
404.1513(d) (2013). And “[i]n determining a
claimant's RFC, an ALJ must consider all relevant
evidence in the record, including . . . ‘the effects of
symptoms . . . that are reasonably attributed to a medically