United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
Richard Creatura United States Magistrate Judge.
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 Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 1; Consent to Proceed
Before a United States Magistrate Judge, Dkt. 2. This matter
has been fully briefed. See Dkts. 10, 11, 12.
considering and reviewing the record, the Court concludes
that the ALJ failed to provide specific and legitimate
reasons for rejecting the medical opinion of plaintiff's
treating physician, Dr. Scott. The ALJ did not evaluate Dr.
Scott's June 2015 opinion and did not appear to consider
any of Dr. Scott's treatment notes in assessing
plaintiff's RFC. The Ninth Circuit has directed the court
to “credit as true” opinions such as this that
have not been properly considered. Had the ALJ considered and
credited Dr. Scott's opinion, along with other evidence
supporting that opinion, plaintiff would have been restricted
to sedentary work and may have been found disabled by
application of the Medical-Vocational guidelines.
Nevertheless, because there are outstanding issues to be
determined, remand for additional proceedings is the
appropriate remedy. Accordingly, this matter is remanded
pursuant to sentence four of 42 U.S.C. § 405(g).
filed applications for disability insurance benefits
(“DIB”) pursuant to 42 U.S.C. § 423 (Title
I) and Supplemental Security Income (“SSI”)
benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of
the Social Security Act on February 5, 2015 and October 24,
2016 respectively, alleging a disability onset date of June
24, 2014. Administrative Record (“AR”) 22,
176-79, 181-86. Plaintiff's applications were denied
initially and on reconsideration. See AR 22, 110-13,
115-16. Plaintiff's requested hearing was held before
Administrative Law Judge Kimberly Boyce (“the
ALJ”) on September 26, 2017. See AR. 42-85. On
December 18, 2017, the ALJ issued a written decision in which
the ALJ concluded that plaintiff was not disabled pursuant to
the Social Security Act. See AR 19-33.
September 17, 2018, the Appeals Council denied
plaintiff's request for review, making the written
decision by the ALJ the final agency decision subject to
judicial review. AR. 1-6; see 20 C.F.R. §§
404.981, 416.1481. Plaintiff filed a complaint in this Court
seeking judicial review of the ALJ's written decision on
November 16, 2018. See Dkt. 1. Defendant filed the
sealed administrative record regarding this matter on March
14, 2019. See Dkt. 8.
Laura Y., was born in 1963 and was 51 years old on her
alleged onset date of June 24, 2014. See AR 87.
Plaintiff received a bachelor's degree in 1999 and left
her most recent job as a grocery store cashier due to her
impairments. See AR 53-54. Plaintiff went on an
approved leave of absence and began receiving short-term
disability benefits on June 24, 2014. AR 198, 202, 204, 236.
Plaintiff's short-term disability payments ended on
December 23, 2014 and she did not return to work after her
leave of absence ended. AR 54, 196-97, 203. Instead,
plaintiff sought assistance from the Washington State
Department of Social and Health Services, Division of
Vocational Rehabilitation (“DVR”), to find work
that she could do despite her impairments. AR 67-8, 326-27.
to the ALJ, plaintiff has the severe impairment of
degenerative disc disease, and the non-severe impairments of
gastroesophageal reflux disease (“GERD”),
hypertension, osteoarthritis of the wrists, carpal tunnel
syndrome, and adjustment disorder. AR 24-25.
alleges, on the other hand, that she is disabled due to
osteomyelitis and an abscess in the L2-L5 epidural space of
her lumbar spine. AR 271. Plaintiff alleges that she has
ongoing back pain due to the aftereffects of her
osteomyelitis and testified that she has difficulty walking
more than six steps without an assistive device such as a
cane. AR 60. In her function report, plaintiff stated that
she is unable to lift more than ten pounds, stand for long
periods, or stay in one position. AR 280. Plaintiff stated
that she is unable to perform any postural activities and can
only walk between 40 and 50 feet before needing to rest. AR
on testimony from a vocational expert (“VE”), the
ALJ determined that plaintiff was able to perform her past
relevant work as a Cashier/Checker and a Retail Sales Clerk.
AR 31-32. 76-77. The ALJ also made alternate step five
findings. Based on the vocational expert's testimony that
an individual with the same RFC as plaintiff-and the same
age, education, and work experience-could perform jobs
existing in significant numbers in the national economy, the
ALJ determined that were a significant number of light,
unskilled jobs plaintiff could perform despite her
impairments. AR 32-33, 77-78.
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill,874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a