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Abu v. Colvin

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

November 17, 2014

ABA M. ABU, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


BRIAN A. TSUCHIDA, Magistrate Judge.

Aba M. Abu seeks review of the denial of her Supplemental Security Income application. She contends the ALJ erred by (1) finding her not fully credible; (2) improperly rejecting lay witness testimony; (3) improperly rejecting the opinions of Janet Huntington, M.D., Dr. Gerald Cavenee, Ph.D., and David Widlan, Ph.D.; and (4) failing to obtain a medical source opinion before determining if her impairments met or equaled a Listed Impairment. Dkt. 13. As discussed below, the Court recommends the case be REVERSED and REMANDED under sentence four of 42 U.S.C. ยง 405(g), for further administrative proceedings.


Ms. Abu is currently 38 years old, has no known formal education, and no work history. Tr. 45, 67. She is a Somali immigrant who arrived in Washington in the spring of 2010. Tr. 262. She does not speak English, and she is illiterate in her native language. Tr. 45. Statements by her husband indicate they have been married for 22 years. See Tr. 262. At the time of her hearing she had six children; five live with her and her husband in the United States. Id; see also Tr. 46.

On June 13, 2011, Ms. Abu applied for benefits, alleging disability as of June 1, 1996. Tr. 18. Her alleged onset date was later amended to June 13, 2011. Tr. 43. Her application for benefits was denied initially and on reconsideration. Tr. 18. The ALJ conducted a hearing on October 24, 2012; Ms. Abu testified through an interpreter. Tr. 39. The ALJ found Ms. Abu not disabled. Tr. 26. As the Appeals Council denied Ms. Abu's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-6.


Utilizing the five-step disability evaluation process, [1] the ALJ found Ms. Abu had not engaged in substantial gainful activity since the amended alleged onset date; she had severe impairments of depressive disorder and a posttraumatic stress disorder (PTSD); and these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 18-20. The ALJ found Ms. Abu had the residual functional capacity to perform a full range of work at all exertional levels, but that she could only understand, remember, and carry out unskilled, routine and repetitive work in which English need not be written, spoken or understood. Tr. 21. The ALJ also found Ms. Abu could handle occasional interactions with supervisors, could not work in a team or cooperative effort, and could not engage in work that required interaction with the general public. Id. The ALJ found Ms. Abu had no relevant past work, but that she could perform jobs that exist in significant numbers in the national economy. Tr. 24-25. The ALJ therefore concluded that Ms. Abu was not disabled. Tr. 26.


A. The ALJ Erred in Finding Ms. Abu Less Than Fully Credible

The ALJ provided several reasons for finding Ms. Abu not credible. Where, as here, there is no evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony.[3] Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The Court may set aside the ALJ's decision if the ALJ's findings are based on legal error or are 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 first rejected Ms. Abu's testimony because, during her psychological evaluations, Ms. Abu presented with mental symptoms that were noticeably absent during medical appointments for "unrelated" health concerns.[4] Tr. 22. This reason is not supported by substantial evidence. Contrary to the ALJ's findings, Ms. Abu's physical medical treatment notes suggest her mental impairments were evident outside of her mental evaluations. During an appointment for back pain and headaches, Ms. Abu was described as being a "very quiet woman who does speak when spoken to, rarely makes eye contact, " and who had depression, anxiety, and "obvious low mood." Tr. 314. On the few occasions Ms. Abu's treatment notes indicated she made eye contact or smiled, her doctor also indicated she exhibited low mood. Tr. 308, 310. In January 2012, Ms. Abu's provider noted she was "rolling [her] head from side to side, " did not make eye contact, seemed distracted, and was not focused unless spoken to directly. Tr. 351-52. One provider noted Ms. Abu was stressed and cried during most of her interview. Tr. 305. On at least one occasion, Ms. Abu reported having trouble with her memory. Tr. 271. She was noted to have difficulties in basic communication.[5] In January 2012, her doctor opined her mental health problems were worsening. Tr. 352.

The ALJ also rejected Ms. Abu's testimony because, despite reports she was unable to care for her children, her medical record indicated she cared for them "at least to some degree." Tr. 23. In fact, the record indicates Ms. Abu's providers were concerned about her ability to care for her children. In August 2010, Ms. Abu's doctor noted "it does seem unsafe to have her solely responsible for childcare." Tr. 315. Over a year later, the same doctor indicated Ms. Abu was "not currently capable of supervising children." Tr. 348; see also Tr. 345. In February 2012, Ms. Abu was described by a provider as "sometimes attending to the two children... sometimes seems to be looking off in space." Tr. 345. In April 2012, Ms. Abu was reported to disbelieve her doctor's opinion that she had had a miscarriage, and she "elected to continue expectant management" for approximately two months. Tr. 330. At that time, she explained that she believed her pregnancy was still viable because fetuses do not develop until four to five months after conception. Tr. 335; see also Tr. 339.[6] These notes and observations are absent from the ALJ's discussion.

Finally, the ALJ rejected Ms. Abu's testimony because her mental symptoms were in part due to situational factors; namely, concerns regarding her children. Id. The ALJ merely concluded, without explaining, that because Ms. Abu was concerned about her children and at least one miscarriage, her mental symptoms should be attributed to those concerns. Tr. 23. This reason is also not supported by substantial evidence.

The ALJ supported her adverse credibility determination with evidence that was clearly selective, and thus, insufficient. See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (ALJ improperly "developed his evidentiary basis by not fully accounting for the context of materials or all parts of the testimony and reports [and] paraphrasing of record material [such that it] is not entirely accurate regarding the content or tone of the record.") ; see also ...

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