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Bergamo v. Berryhill

United States District Court, W.D. Washington

April 2, 2018

BRETT A. BERGAMO, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of the Social Security Administration for Operations, Defendant.

          ORDER ON PLAINTIFF'S COMPLAINT

          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 Dkt. Entry dated 9/11/2017). This matter has been fully briefed. See Dkt. 9, 10. Plaintiff did not file a reply.

         After considering and reviewing the record, the Court concludes that the ALJ erred when evaluating plaintiff's testimony and allegations. Defendant contends that plaintiff's activities of daily living such as his ability to be independent in his self-care, including preparing meals and some household chores; and to drive a car, go shopping, have a savings account, use a checkbook, spend time with others, get along with family friends or neighbors, and get along with various treatment providers “suggest plaintiff's symptoms are not as limiting as he has claimed.” Dkt. 10, p. 8. However, that is not the proper standard to apply when determining if activities of daily living properly can support the failure to credit fully a claimant's allegations and testimony.

         Because neither defendant nor the ALJ has directed the Court to any evidence that plaintiff's activities of daily living are transferable to a work setting, or that they demonstrate a specific inconsistency with plaintiff's other testimony, the ALJ's reliance on plaintiff's activities of daily living when failing to credit fully plaintiff's allegations and testimony is legally erroneous.

         Also, because the other rationale relied on by the ALJ cannot be the sole rationale relied on for the failure to credit fully a claimant's allegations, this matter must be reversed and remanded to the Administration for further administrative proceedings consistent with this Order.

         BACKGROUND

         Plaintiff, BRETT A. BERGAMO, was born in 1969 and was 44 years old on the alleged date of disability onset of August 1, 2013. See AR. 198-99, 201-09. Plaintiff completed the tenth grade. AR. 46-47. Plaintiff last worked as a painter, painting apartment interiors, but stopped working when he became too sick. AR. 49-53.

         According to the ALJ, plaintiff has at least the severe impairments of “diabetes mellitus; pancreatitis; depressive disorder; generalized anxiety disorder; attention deficit hyperactive disorder (ADHD); alcohol dependence; and opioid dependence. (20 CFR 404.1520(c) and 416.920(c)).” AR. 24. At the time of the hearing, plaintiff was living with a friend in his friend's condo. AR. 62-63.

         PROCEDURAL HISTORY

         Plaintiff's applications for disability insurance benefits (“DIB”) 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 were denied initially and following reconsideration. See AR. 80, 93, 106, 120. Plaintiff's requested hearing was held before Administrative Law Judge Virginia M. Robinson (“the ALJ”) on July 22, 2015. See AR. 41-79. On April 6, 2016, the ALJ issued a written decision in which she concluded that plaintiff was not disabled pursuant to the Social Security Act. AR. 19-40.

         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. The Secretary's decision is not supported by substantial evidence nor was ...


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