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Messee v. Colvin

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

January 20, 2017

LAURA MESSEE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge

         Plaintiff Laura Messee has filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her application for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 8.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) failed to provide specific, clear, and convincing reasons for finding Plaintiff's subjective symptom testimony not entirely credible. Had the ALJ properly considered Plaintiff's testimony, the residual functional capacity may have included additional limitations. Therefore, the ALJ's error is harmful and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On August 27, 2012, Plaintiff filed applications for DIB and SSI, alleging disability as of May 15, 2006. See Dkt. 9, Administrative Record (“AR”) 16. The applications were denied upon initial administrative review and on reconsideration. See AR 16. A hearing was held before ALJ Larry Kennedy on May 12, 2014. See AR 40-69. In a decision dated October 3, 2014, the ALJ determined Plaintiff to be not disabled. AR 16-33. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1-3, 20 C.F.R. § 404.981, § 416.1481.

         In the Opening Brief, Plaintiff maintains the ALJ failed to: (1) provide specific, clear, and convincing reasons for finding Plaintiff's subjective testimony not entirely credible; and (2) properly weigh the medical opinion evidence. Dkt. 12, 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

         I. Whether the ALJ provided specific, clear, and convincing reasons for finding Plaintiff's subjective symptom testimony not entirely credible.

         Plaintiff first contends the ALJ erred by failing to provide specific, clear, and convincing reasons for finding Plaintiff's subjective symptom testimony not entirely credible. Dkt. 12, pp. 2- 4. To reject a claimant's subjective complaints, the ALJ must provide “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citation omitted). The ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be “clear and convincing.” Lester, 81 F.2d at 834.

         In determining a claimant's credibility, the ALJ may consider “ordinary techniques of credibility evaluation, ” such as reputation for lying, prior inconsistent statements concerning symptoms, and other testimony that “appears less than candid.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ may also consider if a claimant's complaints are “inconsistent with clinical observations[.]” Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1998). Questions of credibility are solely within the control of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Court should not “second-guess” this credibility determination. Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984). In addition, the Court may not reverse a credibility determination where that determination is based on contradictory or ambiguous evidence. Id. at 579.

         A. Plaintiff's Subjective Testimony

         Plaintiff completed a Function Report -Adult on November 5, 2012. AR 298-305. She reported it is difficult for her to remember things and complete job-related tasks. AR 298. Plaintiff experiences anxiety, which makes it hard to live, and she is afraid of people, especially if she is not familiar with them. AR 298. Plaintiff reported her back problems make it difficult to lift, bend, walk, squat, stand, reach, sit, kneel, and climb stairs. AR 298, 303. Sometimes it is difficult for Plaintiff to dress, care for her hair, shave, and get in and out of bed due to her back pain. AR 299. Plaintiff also has difficulties falling asleep and staying asleep, and she experiences nightmares. AR 299. Her impairments cause difficulties completing tasks, concentrating, and following instructions. AR 303.

         Plaintiff reported completing small loads of laundry every day and stated she spent two and a half hours a day doing laundry and showering. AR 300. She also goes to the store for food daily; she buys what she needs to eat, eats at the store, and then leaves. AR 301. Plaintiff uses “self-check-out” and leaves the store as soon as possible. AR 302. Plaintiff reads and listens to music daily because it helps her relax. AR 302. Plaintiff notes it has taken her two weeks to read two chapters of a book because she gets distracted. AR 303. She spends time with friends every six months and text messages three friends when she has minutes. AR 302. Plaintiff reported walking or taking public transportation to get places. AR 301. On a good day, she can walk a few blocks. AR 303, 339.

         On August 6, 2013, Plaintiff completed a second Function Report-Adult. AR 334-41. She reported it was difficult to leave her apartment because she was afraid of being killed. AR 334. Plaintiff cooks occasionally and does laundry, although it is difficult to do laundry because she is afraid to go outside and the machines are now located outside her apartment. AR 336. Plaintiff states she goes to the doctor and the hospital to visit a friend, but rarely goes out. AR 338. She occasionally text messages and calls friends. AR 338.

         During the ALJ hearing, Plaintiff testified she rides the bus, goes grocery shopping, and speaks on the phone with a few friends. AR 51-52. When Plaintiff does not wake up from night terrors, she makes the bed and takes a shower. AR 52. She continued to report difficulty doing ...


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