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Brett M. v. Commissioner of Social Security

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

April 9, 2019

BRETT M., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING DENIAL OF BENEFITS

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the Court on Plaintiff Brett[1] 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff's 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.

         On November 10, 2011, the Court entered an order remanding the case pursuant to the parties' stipulation. Id. at 440-42.

         On 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.

         On 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.

         On 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.

         The ALJ's decision thus became the Commissioner's final decision. See 20 C.F.R. § 404.984(d). Plaintiff subsequently filed the present Complaint.

         Plaintiff 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. Id.

         II. DISCUSSION

         Pursuant 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 upheld.” Id.

         A. The ALJ Did Not Harmfully Err in Rejecting Plaintiff's Testimony

         Plaintiff 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 at 1207.

         If the 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).

         The ALJ 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.

         1. The ALJ Did Not Err in Rejecting Plaintiff's Testimony Because He Exaggerated His Symptoms

         The ALJ 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 omitted).

         Plaintiff 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.

         2. The ALJ Did Not Err in Determining That Plaintiff's Testimony was Inconsistent with the Medical Evidence

         The ALJ 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.

         The 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 id.

         This 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.

         3. The ALJ Erred in Rejecting Plaintiff's Testimony Based on His ...


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