United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DENIAL OF BENEFITS
B. LEIGHTON UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Brett M.'s
Complaint (Dkt. 1) for review of the Commissioner of Social
Security's denial of his application for disability
insurance benefits. This is the third time this matter has
been before the Court. See AR at 439-44, 1323-33.
has severe impairments of degenerative joint disease,
degenerative disc disease, shoulder abnormality, status post
spinal trauma, and shoulder strain. Id. at 1204.
Plaintiff also alleged mental impairments, but the
Administrative Law Judge (“ALJ”) found them not
severe. See Id. at 1204-06.
applied for disability benefits on March 31, 2008, alleging a
disability onset date of October 9, 2001 due to a workplace
accident. See Id. at 91, 176. His date last insured
was December 31, 2003, which meant he had to establish
disability, as defined in the Social Security Act, on or
before that date. See Id. at 1202.
application was denied on initial review and on
reconsideration. Id. at 91-92. At Plaintiff's
request, ALJ Gary Suttles held a hearing on Plaintiff's
claims. Id. at 31-90. On April 20, 2010, ALJ Suttles
issued a decision denying Plaintiff benefits. Id. at
8-27. The Appeals Council denied review. Id. at 1-3.
Plaintiff then sought review before this Court. See
Id. at 439-44.
November 10, 2011, the Court entered an order remanding the
case pursuant to the parties' stipulation. Id.
remand, ALJ Robert Kingsley held a hearing and again denied
Plaintiff's claims for benefits. Id. at 365-86,
394-438. On July 18, 2014, the Appeals Council denied review.
Id. at 348-51. Plaintiff again sought the
Court's review. See Id. at 1323-33.
August 5, 2015, the Magistrate Judge Mary Alice Theiler
entered an order remanding the case. AR at 1328-33. The
Commissioner conceded that the ALJ had erred, but asked the
Court to remand the case to the Appeals Council. See
Id. at 1331. Magistrate Judge Theiler rejected the
Commissioner's request, and remanded the matter for
further administrative proceedings. Id. at 1333.
remand, ALJ Kelly Wilson held a hearing on February 12, 2016.
Id. at 1234-54. ALJ David Johnson, after taking over
the case, held another hearing on November 28, 2017.
Id. at 1255-75. ALJ Johnson issued a decision again
denying Plaintiff's claim for benefits on January 18,
2018. Id. at 1201-18. The Appeals Council did not
assume jurisdiction, and Plaintiff did not file written
exceptions to the ALJ's decision within 60 days of that
decision. See Compl. ¶ 12.
ALJ's decision thus became the Commissioner's final
decision. See 20 C.F.R. § 404.984(d). Plaintiff
subsequently filed the present Complaint.
argues that the ALJ erred in (a) rejecting Plaintiff's
testimony, (b) evaluating the medical evidence, (c)
evaluating the lay witness testimony, and (d) assessing
Plaintiff's residual functional capacity
(“RFC”) and basing his findings at step five of
the disability evaluation process on that RFC. See
Pl. Op. Br. (Dkt. 11) at 1. Plaintiff argues that the Court
should remand this matter for an award of benefits.
to 42 U.S.C. § 405(g), the 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).
The ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving any other
ambiguities that might exist. Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995). While the Court is required
to examine the record as a whole, it may neither reweigh the
evidence nor substitute its judgment for that of the ALJ.
See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002). “Where the evidence is susceptible to more than
one rational interpretation, one of which supports the
ALJ's decision, the ALJ's conclusion must be
The ALJ Did Not Harmfully Err in Rejecting Plaintiff's
contends that the ALJ erred in rejecting his subjective
symptom testimony. Pl. Op. Br. at 10-15. The Ninth Circuit
has “established a two-step analysis for determining
the extent to which a claimant's symptom testimony must
be credited.” Trevizo v. Berryhill, 871 F.3d
664, 678 (9th Cir. 2017). The ALJ must first determine
whether the claimant has presented objective medical evidence
of an impairment that “‘could reasonably be
expected to produce the pain or other symptoms
alleged.'” Id. (quoting Garrison v.
Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). At this
stage, the claimant need only show that the impairment could
reasonably have caused some degree of the symptoms; he does
not have to show that the impairment could reasonably be
expected to cause the severity of the symptoms alleged.
Id. The ALJ found that Plaintiff met this step
because his medically determinable impairments could
reasonably be expected to cause the symptoms he alleged. AR
claimant satisfies the first step, and there is no evidence
of malingering, the ALJ may only reject the claimant's
testimony “‘by offering specific, clear and
convincing reasons for doing so. This is not an easy
requirement to meet.'” Trevizo, 871 F.3d
at 678 (quoting Garrison, 759 F.3d at
1014-15). In evaluating the ALJ's determination
at this step, the Court may not substitute its judgment for
that of the ALJ. Fair v. Bowen, 885 F.2d 597, 604
(9th Cir. 1989). As long as the ALJ's decision is
supported by substantial evidence, it should stand, even if
some of the ALJ's reasons for discrediting a
claimant's testimony fail. See Tonapetyan v.
Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
found that “the weight that can be given to the
claimant's symptom reports is undermined” for
several reasons. AR at 1207. First, the ALJ found affirmative
evidence of malingering, as Plaintiff exaggerated his
symptoms. Id. at 1211. Second, the ALJ found that
the medical evidence was inconsistent with the severity of
symptoms Plaintiff alleged. Id. at 1210. Third, the
ALJ found that Plaintiff's symptoms were improved with
treatment. Id. Fourth, the ALJ found that
Plaintiff's testimony was undermined by his lack of
participation and follow-through with treatment. Id.
at 1210-11. Fifth, the ALJ found that Plaintiff's daily
activities contradicted his symptom testimony regarding the
degree of his limitations. Id. Taken as a whole, the
ALJ provided clear and convincing reasons for rejecting
Plaintiff's symptom testimony, and did not harmfully err.
The ALJ Did Not Err in Rejecting Plaintiff's
Testimony Because He Exaggerated His Symptoms
determined that the evidence suggested Plaintiff was
exaggerating his symptoms and limitations. AR at 1211.
Affirmative evidence of malingering-standing alone- can
support an ALJ's rejection of Plaintiff's testimony.
See Schow v. Astrue, 272 Fed.Appx. 647, 651 (9th
Cir. 2008) (The existence of “affirmative evidence
suggesting malingering vitiates the clear and convincing
standard of review”) (internal quotation marks
has not shown error here. The ALJ noted that Clyde Carpenter,
M.D., one of Plaintiff's treating doctors, found
Plaintiff had two of five Waddell signs, an indicator of
exaggeration. AR at 590. Robert Campbell, M.D., an examining
doctor, found that Plaintiff had one positive Waddell sign,
and give-way weakness rather than true weakness with his
upper extremities. Id. at 271. The ALJ reasonably
interpreted these findings as affirmative evidence of
malingering and did not err in rejecting Plaintiff's
symptom testimony on this basis. See Thomas, 278
F.3d at 958-59.
The ALJ Did Not Err in Determining That Plaintiff's
Testimony was Inconsistent with the Medical Evidence
determined that the medical evidence was inconsistent with
the severity of symptoms Plaintiff alleged. AR at 1210. In
making this determination, the ALJ focused on the fact that
Plaintiff needed to prove that he met the disability
requirements by December 31, 2003, his date last insured.
See Id. at 1208-10.
ALJ's reasoning here is insufficient on its own as a
basis to reject Plaintiff's symptom testimony, but the
ALJ did not err in discussing or interpreting this evidence.
An ALJ may not reject a Plaintiff's subjective symptom
testimony “based solely on a lack of objective medical
evidence to fully corroborate the alleged severity of pain,
” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th
Cir. 1991), but may consider the lack of supporting medical
evidence in weighing Plaintiff's allegations, Burch
v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)
(upholding ALJ's rejection of claimant's testimony
and noting that “[a]lthough lack of medical evidence
cannot form the sole basis for discounting pain testimony, it
is a factor that the ALJ can consider in his credibility
analysis”). Here, the ALJ reasonably determined that
there was a lack of objective medical evidence between the
alleged onset date and Plaintiff's date last insured to
support the severity of symptoms Plaintiff claimed.
See AR at 1210. And the ALJ reasonably determined
that some of the objective clinical findings were
inconsistent with Plaintiff's allegations. See
analysis could not on its own support rejecting
Plaintiff's testimony, but the ALJ was allowed to
consider it, and Plaintiff has not shown that the ALJ erred
in the analysis itself.
The ALJ Erred in Rejecting Plaintiff's Testimony
Based on His ...