Opinion
NO: 2:18-CV-34-RMP
12-07-2018
ASHLEY B., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
BEFORE THE COURT is United States Magistrate Judge Mary K. Dimke's Report and Recommendation ("R & R"), ECF No. 17 (Nov. 2, 2018), to grant Plaintiff Ashley B.'s motion for summary judgment, ECF No. 14, and deny Defendant Commissioner of Social Security's (the "Commissioner's") cross-motion for summary judgment, ECF No. 15. On November 14, 2018, the Commissioner timely objected to the R & R. ECF No. 19. Plaintiff did not respond to the objection. The Court has reviewed the R & R, the Commissioner's objections and the parties' other submissions, the relevant law, and is fully informed.
In the interest of protecting Plaintiff's privacy, the Court will use Plaintiff's first name and last initial. --------
In objecting to Judge Dimke's recommended disposition of Plaintiff's appeal, the Commissioner argues that the Court should instead affirm the Administrative Law Judge's ("ALJ") decision because there was no harmful error in neglecting to incorporate into either Plaintiff's residual functional capacity ("RFC") determination, or into a question for the vocational expert, a psychologist's opinion that Plaintiff requires "tolerant and supportive supervisors and coworkers[.]" ECF No. 19 at 2-3. The Commissioner argues that the need for "tolerant and supportive" supervisors and coworkers is too vague and does "not address the extent or nature of interaction with supervisors or coworkers." Id. at 3. Therefore, the Commissioner asserts that the ALJ's decision should be affirmed. Id.
The Court is not persuaded that the ALJ was at liberty to disregard this portion of an evaluating psychologist's opinion that the ALJ had otherwise credited. The instant matter does not present an equivalent circumstance to the case cited by the Commissioner in his objection, Patricia T. v. Comm'r of Soc. Sec., 2018 U.S. Dist. LEXIS 163871, 2018 WL 4610053 (D. Or. Sept. 25, 2018). In Patricia T., and the cases upon which that decision relies, a psychologist's opinion that a claimant required an "understanding supervisor" was not expressed as a functional limitation. 2018 U.S. Dist. LEXIS 163871 at *11. However, as determined by Judge Dimke in her R & R, the psychologist evaluating Plaintiff expressed the supportive and tolerant supervisor and coworker limitation as a functional restriction. ECF No. 17 at 33-34. Therefore, remand is necessary for the ALJ to redetermine Plaintiff's RFC.
Accordingly, the Court ADOPTS the R & R, ECF No. 17, in this matter in its entirety.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Summary Judgment, ECF No. 14, is GRANTED.
2. Defendant's Motion for Summary Judgment, ECF No. 15, is DENIED.
3. This matter is REMANDED for further proceedings consistent with the R & R, pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, provide copies to counsel, enter judgment for Plaintiff, and close the file in this case.
DATED December 7, 2018.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge