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Laura Y. v. Commissioner of Social Security

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

June 13, 2019

LAURA Y., Plaintiff,


          J. Richard Creatura United States Magistrate Judge.

         This 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.

         After 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).


         Plaintiff 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.

         On 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.


         Plaintiff, 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.

         According 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.

         Plaintiff 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 285.

         Relying 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.


         The 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 ...

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