United States District Court, D. Oregon
OPINION AND ORDER
A. Russo, United States Magistrate Judge
Jason W. brings this action for judicial review of the final
decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
Title II Disability Insurance Benefits (“DIB”).
All parties have consented to allow a Magistrate Judge enter
final orders and judgment in this case in accordance with
Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons
set forth below, the Commissioner's decision is reversed
and this case is remanded for further proceedings.
August 2014, plaintiff applied for DIB and Title XVI Social
Security Income alleging disability beginning December 31,
2013, due to left eye blindness, right eye
vision problems, and memory problems. Tr. 155-67, 189.
Plaintiff's DIB application was denied at the initial
level and upon reconsideration, whereas plaintiff's Title
XVI application was granted at the initial level and he was
awarded Social Security Income as of the application date.
Tr. 13, 86-99. On February 10, 2017, a hearing was held
before an Administrative Law Judge (“ALJ”). Tr.
28-58. On April 11, 2017, the ALJ issued a decision finding
plaintiff not disabled on or before the date last insured
(“DLI”) and therefore not entitled to DIB. Tr.
13-22. After the Appeals Council denied his request for
review, plaintiff filed a complaint in this Court. Tr. 1-6.
one of the five step sequential evaluation process, the ALJ
found that plaintiff had not engaged in substantial gainful
activity since the amended alleged onset date. Tr. 15. At
step two, the ALJ determined “blindness in
[plaintiff's] left eye” was medically determinable
and severe. Id. At step three, the ALJ found
plaintiff's impairments, either singly or in combination,
did not meet or equal the requirements of a listed
impairment. Tr. 16.
he did not establish presumptive disability at step three,
the ALJ continued to evaluate how plaintiff's impairments
affected his ability to work. The ALJ resolved that, through
the DLI, plaintiff had the residual functional capacity
(“RFC”) to perform work at all exertional levels
but with the following non-exertional limitations:
He was limited to no exposure to hazards such as unprotected
heights and moving mechanical parts but was able to avoid
ordinary hazards in the workplace, such as boxes on the floor
while walking, detecting approaching persons or objects,
walking up and down stairs, and doors ajar. He was limited to
occupations that allowed for monocular vision.
four, the ALJ determined plaintiff could not perform any past
relevant work. Tr. 20. At step five, the ALJ concluded that,
through the DLI, plaintiff was capable of performing other
work existing in significant numbers in the national economy
despite his impairments, such as garment bagger, basket
filler, and protective clothing issuer/stocking clerk. Tr.
case hinges on whether there is sufficient evidence in the
record to establish disability as of December 31, 2013, the
DLI. Specifically, plaintiff argues that the ALJ erred by:
(1) failing to incorporate pre-DLI limitations assessed by
Thomas Davenport, M.D., into the RFC; (2) discrediting his
hearing testimony regarding the extent of his symptoms during
2013; (3) rejecting the lay statements of his mother,
Patricia W.; and (4) neglecting to develop the record
pursuant to SSR 83-20.
Medical Opinion Evidence
contends the ALJ improperly discounted Dr. Davenport's
findings. Pl.'s Opening Br. 4-6 (doc. 10). At the time of
the ALJ's decision, there were three types of acceptable
medical opinions in Social Security cases: those from
treating, examining, and non-examining doctors. Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ
“may reject the opinion of a non-examining physician by
reference to specific evidence in the medical record.”
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir.
1998) (citations omitted).
November 2014, Dr. Davenport, a state agency consulting
source, reviewed the record and provided a physical RFC. Tr.
65-67. Dr. Davenport found plaintiff “was already
totally blind in [his left] eye at AOD for title II, ”
meaning that plaintiff's left eye impairment arose on or
before the DLI. Tr. 62, 67. In terms of visual restrictions,
Dr. Davenport opined plaintiff was “limited” on
the left side in the following categories: near and far
acuity, depth perception, accommodation, and field of vision.
Tr. 66. The narrative supporting description stated:
“Vision on the LEFT limited to NEVER due to left eye
blindness.” Id. In terms of environmental
limitations, Dr. Davenport opined plaintiff should
“[a]void even moderate ...