United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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 legally sufficient reasons to reject
Plaintiff's subjective symptom
argues the ALJ erred by failing to provide specific, clear
and convincing reasons to reject her subjective symptom
testimony. Dkt. 10, pp. 11-14.
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. 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.
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.
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.
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
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).
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. 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.
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).
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.
Whether the ALJ committed harmful error in his assessment of
opinion evidence from “other medical
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,
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);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 ...