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Mitzel v. Berryhill

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

February 1, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,[1] Defendant.


          J. Richard Creatura United States 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. 3; Consent to Proceed Before a United States Magistrate Judge, Dkt. 5). This matter has been fully briefed (see Dkt. 9, 10, 11).

         After considering and reviewing the record, the Court concludes that the ALJ did not commit harmful legal error when evaluating plaintiff's allegations and testimony. It is true that once a claimant demonstrates the existence of an impairment an ALJ may not fail to credit fully the claimant's allegations of limitations based on a lack of objective medical evidence. However, such reasoning is distinct from a finding that a claimant's allegations are inconsistent with or are contradicted by the medical record.

         Here, plaintiff's allegation of disabling pain rendering her unable to walk more than 15 minutes is inconsistent with the recommendation from her physician that she continue with walking and exercise. This allegation also is inconsistent with the observation of plaintiff's physician that she walked without evidence of pain. Similarly, plaintiff's allegations of shoulder pain and reaching limitations are contradicted by the observation from her physician that she moved her upper extremities without any limitation and that moving her shoulders was painless.

         Although the ALJ uses the term “credibility”[2], this is not a determination of whether or not plaintiff is a truthful person, but is a determination of whether her allegations regarding her limitations should be accommodated fully when making a determination of the extent of her limitations and the timing of them. Some of the allegations that the ALJ failed to credit fully were reported by plaintiff in 2013, and may have accurately reflected her contemporaneous experience at that time. However, in the decision being reviewed by the Court, the ALJ found that the alleged limitations did not exist prior to December 31, 2010 -- the date last insured. That finding is based on substantial evidence in the record as a whole, as discussed more thoroughly herein.

         Therefore, as plaintiff needs to establish disability on or before December 31, 2010 in order to be entitled to a period of disability and disability insurance benefits, and as the ALJ's finding that she was not under a disability at any time from her alleged onset date through December 31, 2010 is supported by substantial evidence, the Court concludes that this matter shall be affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         Plaintiff, ANDREA MITZEL, was born in 1971 and was 38 years old on the alleged date of disability onset of September 1, 2010 (see AR. 133-34). Plaintiff completed the tenth grade in high school and has not obtained her GED (AR. 33). Plaintiff has work experience as a secretary/office administrator and waitress (AR. 33-38). However, plaintiff's last job as a secretary was very difficult for her, as she found it difficult to sit for long periods of time (see AR. 34).

         According to the ALJ, through the date last insured, plaintiff had at least the severe impairments of “cervical degenerative disc disease; mild lumbar degenerative disc disease; and mild tendinopathy of the left shoulder (20 CFR 404.1520(c))” (AR. 14).

         At the time of the hearing, plaintiff was living with her husband and 9-year-old son (AR. 39-40). //


         Plaintiff's application for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following reconsideration (see AR. 56-61, 63-69). Plaintiff's requested hearing was held before Administrative Law Judge Michael C. Blanton (“the ALJ”) on September 18, 2014 (see AR. 27-54). On January 9, 2015, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see AR. 9-26).

         In plaintiff's Opening Brief, plaintiff raises the following issues: (1) The ALJ erred by failing to credit fully plaintiff's allegations and testimony; and (2) The ALJ's errors were not harmless (see Dkt. 9, p. 1).

         STANDARD ...

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