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Wagner v. Berryhill

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

June 26, 2018

NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.



         Plaintiff Candace Wagner filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the Deputy Commissioner of Social Security's (“Commissioner”) denial of Plaintiff's 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. Dkt. 5.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) did not err in his evaluation of Plaintiff's subjective symptom testimony. Further, the Court concludes Plaintiff has not shown the ALJ committed harmful error with respect to opinion evidence from “other medical sources.” The Court also concludes the record reflects the ALJ did not violate Plaintiff's due process rights. Therefore, because the ALJ's decision finding Plaintiff not disabled is supported by substantial evidence, the Commissioner's decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         On October 3, 2014, Plaintiff filed applications for SSI and DIB, alleging disability as of January 21, 2013. See Dkt. 8, Administrative Record (“AR”) 13. The applications were denied upon initial administrative review and on reconsideration. See AR 13. On August 29, 2016, ALJ Larry Kennedy held the first hearing in this matter. AR 57-72. The ALJ did not complete the hearing that day, however, and instead continued the hearing so it could be held on a later date due to records which were not yet in the administrative record. AR 64-72. On December 1, 2016, the ALJ held the second hearing in this matter. AR 35-56. Plaintiff did not attend that hearing. See AR 37-38, 49-50, 210, 352. In a decision dated May 1, 2017, the ALJ determined Plaintiff to be not disabled. AR 10-34. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 1-3; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to provide specific, clear and convincing reasons to reject Plaintiff's subjective symptom testimony; (2) failing to properly consider opinion evidence from “other” sources; (3) violating Plaintiff's due process rights by conducting the second hearing without her presence and denying the issuance of a subpoena; and (4) failing to reconcile a conflict between testimony from the vocational expert (“VE”) and the Dictionary of Occupational Titles (“DOT”). Dkt. 10, pp. 1-17.


         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)).


         I. Whether the ALJ provided legally sufficient reasons to reject Plaintiff's subjective symptom testimony.

         Plaintiff argues the ALJ erred by failing to provide specific, clear and convincing reasons to reject her subjective symptom testimony. Dkt. 10, pp. 11-14.

         To reject a claimant's subjective complaints, the ALJ must provide “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d at 821, 834 (9th Cir. 1995) (citation omitted). The ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Id.; see also 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.3d at 834 (citation omitted). While Social Security Administration (“SSA”) regulations have eliminated references to the term “credibility, ” the Ninth Circuit has held its previous rulings on claimant's subjective complaints - which use the term “credibility” - are still applicable.[1] See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); 2016 WL 1237954 (Mar. 24, 2016); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing 9th Circuit precedent). Questions of credibility are solely within the ALJ's control. 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). Moreover, the Court may not reverse a credibility determination where the determination is based on contradictory or ambiguous evidence. Id. at 579.

         Here, the ALJ considered various sources of Plaintiff's statements in assessing her subjective symptom testimony. See AR 20. The ALJ first considered a written statement Plaintiff submitted after the second hearing, in which Plaintiff wrote that discrimination and harassment at her previous employer intensified her post-traumatic stress disorder symptoms. AR 353. Plaintiff also wrote she is “not capable of working” because her “pain levels have taken [over] [her] quality of life.” AR 355. Plaintiff stated this pain stems from her degenerative disc disease, and her pain has gotten worse due to osteoarthritis in her back, hands, feet, and arms. AR 355.

         Next, the ALJ noted Plaintiff told an examiner that she cannot sit or stand in any particular position for any length of time. See AR 20, 570. Further, the ALJ explained that in an electronic correspondence Plaintiff provided from January 2013, Plaintiff wrote to a union steward about working conditions that elevated her anxiety and depression. See AR 20, 302-07. Plaintiff stated the anxiety from her working conditions made it difficult to focus at work or sleep at night. AR 302-07.

         The ALJ summarized Plaintiff's statements and determined that although Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” her statements regarding “the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” AR 20, 23. Specifically, the ALJ rejected Plaintiff's subjective symptom testimony because:

The claimant regularly performed activities that were beyond her alleged physical abilities throughout the period of disability alleged: lifting her daughter and her wheelchair, doing yard work, and moving loads with a rented truck. Though complaining of pain, physical examinations of the claimant regularly showed normal gait, strength, and ranges of motion. Apart from the relief she gets from psychiatric medication, the claimant does not appear to be open to behavior modification to improve her stress response. This has led to confrontations at work. However, psychological examinations have revealed, at most, moderate levels of limitation in any mental area of functioning; and medical examiners have frequently found no psychological abnormalities at examination. The claimant's responsibilities, coupled with her lack of resources and family support network make it important for her to learn to handle stress and changes; but her symptoms brought on by stress are not altogether debilitating.

AR 23 (emphasis added) (internal citations omitted).

         The ALJ, in relevant part, rejected Plaintiff's subjective symptom testimony because she regularly performed activities beyond her alleged physical abilities. AR 23. There are two grounds under which an ALJ may use daily activities to form the basis of an adverse credibility determination: (1) whether the activities contradict the claimant's other testimony, or (2) whether the activities of daily living meet “the threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ referred to the first ground by claiming Plaintiff's daily activities contradicted her statements about her “alleged physical abilities.” AR 23. The ALJ accurately noted the record shows Plaintiff regularly performed yard work, including mowing a half-acre lawn with a push mower.[2] See AR 20, 21-22 (ALJ summarizing Plaintiff's activities); see also AR 567, 645, 649, 682, 692 (records reflecting Plaintiff's activities). The record also shows Plaintiff performed these activities despite her allegations that she “cannot sit or stand in any particular position for any length of time.” See AR 570. Thus, given that yard work necessarily implicates standing and sitting, Plaintiff's ability to perform yard work contradicts her statement that she cannot stand or sit for any length of time.

         Plaintiff argues that, by citing these activities, “the ALJ punished [Plaintiff] for occasionally doing more than lying around all day.” Dkt. 10, pp. 13-14 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Plaintiff's argument is unsupported by the record. The ALJ was not punishing Plaintiff for performing these activities; rather, the ALJ noted these activities contradict Plaintiff's statements about her inability to sit or stand, and showed Plaintiff was capable of greater physical exertional activities than she alleged. See AR 23. As such, the ALJ's statement was supported by substantial evidence in the record and was a specific, clear and convincing reason to reject Plaintiff's testimony. See Carroll v. Colvin, 2013 WL 4830747, at *4 (W.D. Wash. Sept. 11, 2013) (ALJ reasonably concluded Plaintiff's testimony that he could not stand for more than 10-15 minutes was undermined, in part, by his ability to do yard work, move a mattress, and use a wheelbarrow).

         Although the ALJ provided other reasons to discount Plaintiff's testimony, the Court need not consider whether these remaining reasons contained error, as the ALJ gave a proper reason to discount Plaintiff's testimony and the “ultimate credibility determination [is] adequately supported by substantial evidence[.]” See Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (emphasis in original) (citation omitted) (concluding, in light of harmless error principles, “the ALJ's decision finding [the claimant] less than fully credible is valid” despite some errors because the ALJ gave legally sufficient reasons to reject Plaintiff's testimony). Hence, the ALJ did not commit harmful error in his assessment of Plaintiff's subjective symptom testimony.[3]

         II. Whether the ALJ committed harmful error in his assessment of opinion evidence from “other medical sources.”

          Next, Plaintiff argues the ALJ erred with respect to medical evidence from two “other medical sources”: Treating chiropractor, Dr. Mark Webber, D.C., and treating physician's assistant, Ms. Heidi Burgi, PA-C. Dkt. 10, pp. 4-8.

         Pursuant to federal regulations, medical opinions from “other medical sources, ” such as chiropractors and physicians' assistants, must be considered. See 20 C.F.R. § 404.1513(d) (effective Sept. 3, 2013 to Mar. 26, 2017);[4]see also Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010) (citing 20 C.F.R. § 404.1513(a), (d)); SSR 06-3p, 2006 WL 2329939. “Other medical source” testimony, which the Ninth Circuit treats as lay witness testimony, “is competent evidence an ALJ must take into account, ” unless the ALJ “expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Turner ...

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