Esposo v. Colvin

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION re 15 Objections to Report and Recommendation filed by Nancy A. Berryhill.Signed by Judge Robert J. Bryan. (JL)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7

CASE NO. 16-1574 RJB BAT

ARMANDO F. ESPOSO,
Plaintiff,

8
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION

9
10

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,

11
Defendant.
12
13

This matter comes before the Court on the Report and Recommendation of U.S.

14

Magistrate Judge Brian A. Tsuchida. Dkt. 14. The Court has reviewed the Report and

15

Recommendation, Defendant’s Objections to the Report and Recommendation, and the

16

remaining record.

17

Plaintiff filed this case challenging the denial of his application for Supplemental

18

Security Income benefits. Dkt. 1. On May 31, 2017, a Report and Recommendation was filed,

19

recommending that the case be remanded to the Social Security Administration for further

20

proceedings. Dkt. 14. The Commissioner filed objections and the Plaintiff filed a reply to those

21

objections. Dkts. 15 and 16. The facts are in the Report and Recommendation and are adopted

22

here. Dkt. 14.

23
24

The Report and Recommendation (Dkt. 14) should be adopted and the case remanded to
the Commissioner for further proceedings. The Commissioner’s objections are generally a

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

1

recitation of her prior arguments. The Report and Recommendation recommends that the Court

2

find that the ALJ failed to adequately assess the medical opinion of consultative examiner Daniel

3

Phan, M.D.’s finding that Plaintiff “should use supportive hose and elevate his leg regularly to

4

minimize swelling.” Dkt. 14. The Commissioner objects, asserts that it was not error because

5

the ALJ found Mr. Esposo should have breaks and he could elevate his legs during breaks, and

6

even if it was the error, the error was harmless. Dkt. 15.

7

As stated in the Report and Recommendation, the Commissioner’s post-hoc

8

rationalizations (that Mr. Esposo’s could elevate his legs during breaks) are improper and this

9

Court cannot rely on them. Dkt. 14, at 4 (citing Pinto v. Massanari, 249 F.3d 840, 847-48 (9th

10

Cir. 2001). Further, considering the record as a whole, the undersigned cannot find that the error

11

was harmless, particularly considering the other errors.

12

The Report and Recommendation urges the Court to find that the ALJ erred in failed to

13

discuss the state agency consultants Drs. Robinson and Eather’s opinions that “[s]upervisor

14

criticism should be delivered [to Mr. Esposo] in a non-threatening manner.” Dkt. 14, at 4-5. The

15

Commissioner asserts that these opinions were recommendations that the ALJ need not address

16

and are wholly consistent with the residual functional capacity (“RFC”). Dkt. 15. As stated in

17

the Report and Recommendation, the doctors’ use of the word “should” does not “suggest

18

something short of an imperative.” Dkt. 14, at 5 (citing Carmickle v. Comm’r of Social Sec.

19

Admin., 533 F.3d 1155, 1165 (9th 2008)). The Commissioner asserts that, in any event, the

20

opinions are merely that Mr. Esposo’s supervisors should conduct themselves in accord with

21

workplace norms. Dkt. 15, at 5. This argument is, again, post hoc rationale. The ALJ failed to

22

discuss this limitation, include it in Mr. Esposo’s RFC, or in the hypothetical questions posed to

23
24

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

1

the vocational expert; he certainly did not make any findings regarding workplace norms. This

2

objection is not a basis to reject the Report and Recommendation.

3

The Report and Recommendation also recommends that the Court find that the ALJ

4

improperly assessed the opinions of Ms. St. Jacques regarding Mr. Esposo’s ability to take

5

direction from and respond to criticism from supervisors. Dkt. 14. The Commissioner argues

6

that as an “other source” opinion, (she was his treating counselor), the ALJ’s finding that there

7

was no objective evidence to support the finding, was “germane” which is sufficient. Dkt. 15.

8

These arguments are addressed in the Report and Recommendation and do not provide a basis to

9

reject it.

10

The Report and Recommendation (Dkt. 14) should be adopted. The Commissioner’s

11

decision should be reversed and the case remanded to the Social Security Administration for

12

further proceedings consistent with this opinion.

13

It is ORDERED that:

14



The Report and Recommendation (Dkt. 14) IS ADOPTED;

15



The decision of the Commissioner IS REVERSED, and the case IS

16

REMANDED pursuant to sentence four of 42 U.S.C. § 405 (g) to the Social

17

Security Administration for further proceedings.

18
19
20
21
22
23

The Clerk is directed to send uncertified copies of this Order to Judge Tsuchida, all
counsel of record and to any party appearing pro se at said party’s last known address.
Dated this 10th day of July, 2017.

A
ROBERT J. BRYAN
United States District Judge

24

ORDER ADOPTING REPORT AND RECOMMENDATION - 3