Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kenneth C. v. Berryhill

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

June 4, 2019

KENNETH C., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

         NOTING DATE: June 21, 2019

          REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT

          J. Richard Creatura, United States Magistrate Judge.

         This 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.

         Plaintiff 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 benefits.

         FACTS

         In May 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.

         In 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.[1] See AR. 27- 28.

         The 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.

         DISCUSSION

         I. 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)).

         II. Counselor Weeks' Opinion and the RFC

         Plaintiff 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.

         The ALJ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.