United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DENIAL OF
B. LEIGHTON UNITED STATES DISTRICT JUDGE
Connie A. seeks review of the denial of her application for
supplemental security income and disability insurance
benefits. Compl. (Dkt. 3). Plaintiff has severe impairments
of left eye blindness and right eye diabetic retinopathy with
macular edema. Admin. Record (“AR”) at 17.
applied for disability benefits on June 14, 2016, alleging
disability as of June 3, 2016. Id. at 66, 183-90.
Plaintiff’s application was denied on initial review
and on reconsideration. Id. at 66-83, 86-105. At
Plaintiff’s request, Administrative Law Judge
(“ALJ”) Allen G. Erickson held a hearing on
Plaintiff’s claims. Id. at 27-63. On June 13,
2018, ALJ Erickson issued a decision finding Plaintiff not
disabled and denying her claim for benefits. Id. at
15-21. The Appeals Council denied review. Id. at
argues that the ALJ erred by (a) failing to fully develop the
record to determine whether Plaintiff met a listing for her
visual impairments, (b) failing to properly evaluate
Plaintiff’s symptom testimony, (c) failing to properly
evaluate the opinions of consulting doctor Bryan Packer,
M.D., and (d) failing to find Plaintiff’s alleged
headaches severe impairments at step two. Pl. Op. Br. (Dkt.
9) at 1.
to 42 U.S.C. § 405(g), the 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). 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 ALJ. See Thomas v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002). “Where the evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ’s decision, the ALJ’s
conclusion must be upheld.” Id.
The ALJ Harmfully Erred in Failing to Fully Develop the
argues that the ALJ erred by failing to fully develop the
record as to whether Plaintiff’s visual impairments met
the requirements for listing 2.02, 2.03, or 2.04. Pl. Op. Br.
at 3-5. Listing 2.02 relates to visual acuity, listing 2.03
relates to contraction of the visual field, and listing 2.04
relates to loss of visual efficiency. 20. C.F.R. Part 404,
Subpart P, App. 1, § 2.02-04. ALJ Erickson stated that
he considered these three listings, but explained only that
“the evidence does not establish that the claimant
meets any of the listings.” AR at 18.
lost sight in her left eye in June 2016, and had the eye
removed in February 2017. Id. at 367, 863. She
received injections into her right eye on a near-monthly
basis from the alleged onset date through the date of her
hearing before ALJ Erickson. See Id . at 426,
694-95, 709-10, 721, 731, 737, 743, 749, 754, 979, 985, 992.
Plaintiff had laser surgery on her right eye in October 2016
and April 2017. Id. at 694-95, 709-10. The record
indicates that, with some minor variation, Plaintiff had
visual acuity of 20/25 in her right eye from her alleged
onset date through the date of the ALJ’s decision.
See AR at 404, 414, 584, 982, 1013. Plaintiff also
had normal results in her right eye on confrontation visual
field testing. See Id . at 413, 421, 585, 595, 601,
983, 1019. There is no opinion in the record from a treating
or examining doctor regarding Plaintiff’s visual
ALJ in a social security case has an independent ‘duty
to fully and fairly develop the record and to assure that the
claimant's interests are considered.’”
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288
(9th Cir. 1996)). The duty to develop the record beyond the
medical records themselves is triggered “when there is
ambiguous evidence or when the record is inadequate to allow
for proper evaluation of the evidence.” Mayes v.
Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing
Tonapetyan, 242 F.3d at 1150).
erred in failing to fully develop the record regarding
Plaintiff’s field of vision in her right eye. The
Commissioner’s regulations state that visual field
testing is needed when a claimant has a visual disorder that
could result in visual field loss. 20 C.F.R. Part 404,
Subpart P, App. 1, § 2.00(A)(6)(a). The only tests of
Plaintiff’s visual field in the record are
confrontation tests. See AR at 413, 421, 585, 595,
601, 983, 1019. However, the Commissioner’s regulations
state that the Commissioner “will not use the results
of visual field testing, such as confrontation tests . . . to
determine that [a claimant’s] impairment meets or
medically equals a listing or to evaluate [the
claimant’s] residual functional capacity.” 20
C.F.R. Part 404, Subpart P, App. 1, § 2.00(A)(6)(f). The
record therefore lacked adequate test results from which to
determine whether Plaintiff’s vision impairments met a
listing, and the ALJ had a duty to further develop the record
to resolve this issue. The ALJ erred in failing to do so.
The ALJ Partially Erred in Discounting Plaintiff’s
argues that ALJ Erickson erred in rejecting her subjective
symptom testimony. Pl. Op. Br. at 6-11. Plaintiff testified
that she has been blind in her left eye since the alleged
onset date, and has had her left eye removed. AR at 44, 47.
Plaintiff testified that she has blurry vision in her right
eye, with sensitivity to light. Id. at 44-45, 226.
Plaintiff testified that her field of vision was affected, as
“the edges of [her] vision kind of flicker.”
Id. at 45. Plaintiff testified that she gets a