United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel United States Magistrate Judge
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.
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.
AND PROCEDURAL HISTORY
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.
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,
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
Whether the ALJ provided specific, clear, and convincing
reasons for finding Plaintiff's
subjective symptom testimony not entirely credible.
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.
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.
Plaintiff's Subjective Testimony
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.
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.
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
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 ...