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Nielsen v. Colvin

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

December 5, 2014

POE VILI NIELSEN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

ORDER ON PLAINTIFF'S COMPLAINT

J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, Dkt. No. 3 Consent to Proceed Before a United States Magistrate Judge, Dkt. No. 4). This matter has been fully briefed ( see Dkt. Nos. 11, 14, 15).

After considering and reviewing the record, the Court finds that the ALJ erred in adversely assessing plaintiff's credibility. In finding plaintiff to be not credible, the ALJ pointed to an investigation of plaintiff regarding his alleged need to use a wheelchair or crutches to get around. However, that investigation occurred after the time period in which plaintiff was claiming he needed a wheelchair or crutches. The ALJ also pointed to plaintiff's IRS problems, which the ALJ categorized as tax fraud. However, these two reasons were not supported by substantial evidence in the record.

BACKGROUND

Plaintiff, POE VILI NIELSEN, was born in 1967 and was 44 years old on the amended alleged date of disability onset of May 10, 2012 ( see AR 12, 170-76, 177-83). Plaintiff has a high school education and completed a truck driving school (AR 33). Plaintiff has work experience driving a fork lift (AR 37). He then owned a bakery that catered to Samoan people until "he couldn't find the energy to do it anymore. That's why he stopped." (AR 34.)

According to the ALJ, plaintiff has at least the severe impairments of "ischemic heart disease; diabetes mellitus; osteoarthritis; and gout (20 CFR 404.1520(c) and 416.920(c))" (AR 15).

At the time of the hearing, plaintiff was living with his wife, and taking care of a niece and nephew.

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act, which were denied initially and following reconsideration ( see AR 46-53, 54-64, 67-80, 81-94). Plaintiff's requested hearing was held before Administrative Law Judge Gary Elliott ("the ALJ") on January 8, 2014 ( see AR 26-43). On January 31, 2014, the ALJ issued a written decision in which the ALJ dismissed plaintiff's Title II claim (AR 13) and concluded that plaintiff was not disabled pursuant to the Social Security Act ( see AR 9-25).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the ALJ err in adversely assessing plaintiff's credibility; and (2) Were the ALJ's errors harmless ( see Dkt. No. 11, p. 1).

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

DISCUSSION

1. Did the ALJ err in adversely assessing ...


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