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Lloyd v. Berryhill

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

July 16, 2018

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



         Plaintiff Samantha D. Lloyd filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's application for supplemental security income (“SSI”). 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. See Dkt. 2.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to provide clear, and convincing reasons supported by substantial evidence for discrediting Plaintiff's subjective symptom testimony. Had the ALJ properly considered Plaintiff's subjective symptom testimony, he may have included additional limitations in the RFC and in the hypothetical questions posed to the vocational expert. As the ultimate disability determination may have changed, the ALJ's error is not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Deputy Commissioner of Social Security Operations (“Commissioner”) for further proceedings consistent with this Order.


         In October 2014, Plaintiff filed applications for SSI and disability insurance benefits (“DIB”), alleging disability as of July 21, 2005. See Dkt. 11, Administrative Record (“AR”) 199-209. Plaintiff later amended her alleged onset date to October 27, 2014, and voluntarily dismissed her DIB claim. AR 21, 36-37, 210-211. The application was denied upon initial administrative review and on reconsideration. See AR 76-97, 110-121. A hearing was held before ALJ Gary Elliott on April 13, 2016. See AR 34-73. In a decision dated May 12, 2016, the ALJ determined Plaintiff to be not disabled. See AR 18-33. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1-7; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) improperly evaluating Plaintiff's subjective symptom testimony; (2) improperly evaluating the lay evidence; (3) improperly evaluating the medical evidence; and (4) improperly evaluating the step five findings and Plaintiff's residual functional capacity (“RFC”). Dkt. 15 at 1.


         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 erred in evaluating Plaintiff's subjective symptom testimony.

         Plaintiff contends the ALJ erred by failing to provide specific, clear, and convincing reasons for finding Plaintiff's subjective symptom testimony not fully supported. Dkt. 9. To reject a claimant's subjective complaints, the ALJ must provide “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citation omitted). The ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Id.; 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.2d at 834. Questions of credibility are solely within the control of the ALJ. 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). In addition, the Court may not reverse a credibility determination where the determination is based on contradictory or ambiguous evidence. Id. at 579.

         Plaintiff testified she cannot work due to her fibromyalgia, which limits her ability to use her hands, bend, lift, and sit and stand for long periods of time. AR 42-43. Plaintiff testified she can only use her hands for 20 to 30 minutes at a time, then they start to go numb and lock up, and she has to wait half an hour before using them again. AR 43, 50. Plaintiff testified she can stand for 15 to 20 minutes and sit for 30 minutes at a time. AR 42. Plaintiff testified she can walk occasionally. AR 42. Plaintiff testified she can lift five to ten pounds frequently, and has trouble lifting over 30 pounds. AR 42-43, 58. Plaintiff testified she attempts to do most household chores, including cleaning the bathroom, cooking simple meals, and doing the dishes, but if she can't do a chore one day, she “hope[s] that [she'll] be able to do it the next [day].” AR 53. Plaintiff testified she can start a load of laundry by putting it in the washer, but her husband has to help her move the laundry to the dryer because bending over exacerbates her back pain. AR 53-54. Plaintiff has two children, ages and four and nine at the time of the hearing. AR 53-54. Plaintiff testified if she drops something such as a utensil in the kitchen, one of the children picks it up. AR 53-54. Plaintiff testified she has difficulty grasping and gripping the steering wheel while driving can be difficult. AR. 57-58.

         Plaintiff testified she doesn't take naps during the day, but she tries to lie down to relax her muscles for about half an hour. AR 53. Plaintiff testified her hand and back pain are at a constant level of 6 to 7 all day. AR. 52 (On a scale of one to ten, one being “really nothing” and ten being “almost like going to the ER[.]”). Plaintiff testified she has anxiety and depression caused by her fibromyalgia and chronic illness. AR 59.

         The ALJ found Plaintiff's allegations were not fully supported because they are inconsistent with the medical evidence and other evidence in the record. AR. 27. Specifically, the ALJ found: (1) Plaintiff's testimony is inconsistent with her daily activities; (2) Plaintiff was able to work in 2006, 2007, and 2009; (3) Plaintiff sought minimal treatment;[1] and (4) Plaintiff's testimony is inconsistent the objective medical evidence. AR 25-27. Defendant only contends two of these reasons are clear and convincing and supported by the record, arguing Plaintiff's part-time work history and ...

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