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Jason W. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

December 20, 2018

JASON W., [1] Plaintiff,


          Jolie A. Russo, United States Magistrate Judge

         Plaintiff 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.


         In August 2014, plaintiff applied for DIB and Title XVI Social Security Income alleging disability beginning December 31, 2013[2], 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.


         At step 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.

         Because 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.


         At step 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. 22.


         This 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.

         I. Medical Opinion Evidence

         Plaintiff 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).

         In 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 ...

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