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Connie A. v. Commissioner of Social Security

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

September 18, 2019

CONNIE A., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING DENIAL OF BENEFITS

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff 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.

         Plaintiff 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 1-3.

         Plaintiff 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.

         II. DISCUSSION

         Pursuant 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.

         A. The ALJ Harmfully Erred in Failing to Fully Develop the Record

         Plaintiff 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.

         Plaintiff 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 impairments.

         “The 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).

         The ALJ 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.

         B. The ALJ Partially Erred in Discounting Plaintiff’s Testimony

         Plaintiff 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 ...


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