United States District Court, W.D. Washington
BRETT A. BERGAMO, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of the Social Security Administration for Operations, Defendant.
ORDER ON PLAINTIFF'S COMPLAINT
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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.
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
The Secretary's decision is not supported by substantial
evidence nor was ...