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John M. v. Commissioner of Social Security

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

May 7, 2019

JOHN 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 John M.'s Complaint (Dkt. 4) for review of the Commissioner of Social Security's denial of his application for disability insurance and supplemental security income benefits. This is the second time this matter has been before the Court. See Administrative Record (“AR”) (Dkt. 8) at 1059-62.

         Plaintiff has severe impairments of bilateral hearing loss, degenerative disc disease, obesity, diabetes mellitus, mood disorder/bipolar disorder II/major depressive disorder/antisocial personality disorder, rule-out malingering, anxiety disorder not otherwise specified, alcohol dependence, and cocaine and methamphetamine abuse. Id. at 943.

         Plaintiff applied for disability benefits on April 8, 2011, alleging a disability onset date of September 20, 2011.[1] See Id. at 126, 230-33. Plaintiff had previously applied for and been denied benefits, a decision that Plaintiff did not appeal. See Id. at 109-20.

         Plaintiff's application was denied on initial review and on reconsideration. Id. at 126-37, 139-53. At Plaintiff's request, Administrative Law Judge (“ALJ”) Michael Gilbert held a hearing on Plaintiff's claims. Id. at 43-105. The Appeals Council denied review. Id. at 1-4. Plaintiff then sought review before this Court. See Id. at 1057-58.

         On October 27, 2015, Magistrate Judge Richard Creatura issued an order reversing and remanding the ALJ's decision for further administrative proceedings. Id. at 1063-71. Magistrate Judge Creatura held that the ALJ erred in rejecting the opinions of Daniel Neims, Psy.D. Id.

         Prior to Magistrate Judge Creatura's decision, Plaintiff filed a new application for benefits. See Id. at 1419-31. On remand, the Appeals Council ordered that application to be consolidated with the 2011 application. Id. at 1077-80.

         On remand, ALJ Gilbert held a second hearing. Id. at 972-1022. He then issued a partially favorable decision. Id. at 940-53. ALJ Gilbert found that Plaintiff was not disabled from September 20, 2011, the alleged onset date, to January 18, 2015, but became disabled on January 19, 2015. Id. Plaintiff filed written exceptions to the ALJ's decision, but the Appeals Council declined to assume jurisdiction. Id. at 1398-1403, 930-32.

         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 steps four and five of the disability evaluation process on that RFC. See Pl. Op. Br. (Dkt. 14) at 2. 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).

         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 12-16. Plaintiff testified that he had severe back pain that radiated down his legs, limiting his ability to sit, stand, or walk. AR at 296, 300-01, 982, 999-1000, 1494, 1499, 1524, 1529. Plaintiff testified that he was limited in the amount he could lift. See Id. Plaintiff testified that his biggest obstacle to employment was his mental condition, which caused him to have trust and anger issues. See Id. at 64, 75-76, 296, 301.

         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 945.

         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 Plaintiff's testimony concerning the intensity, persistence, and limiting effects of his symptoms was “not fully supported prior to January 19, 2015.” AR at 945. The ALJ reasoned that Plaintiff's medical records were inconsistent with the severity of physical and mental limitations alleged, and that Plaintiff's daily activities contradicted the severity of symptoms alleged. Id. at 945-48.

         Plaintiff has failed to show harmful error with respect to the ALJ's first reason- inconsistency with the overall medical record. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (holding that the party challenging an administrative decision bears the burden of proving harmful error) (citing Shinseki v. Sanders, 556 U.S. 396, 407-09 (2009)). While an ALJ may not reject subjective pain testimony “on the sole ground that it is not fully corroborated by objective medical evidence, ” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001), the ALJ may reject such testimony when it is contradicted by the objective medical evidence, see Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Plaintiff has done nothing more than present an alternative interpretation of the evidence. But “[w]here 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.” Thomas, 278 F.3d at 954. The ALJ gave a thorough discussion of the evidence, citing numerous records that revealed less severe impairments than Plaintiff alleged. See AR at 945-47. The Court will not second-guess that interpretation given Plaintiff's failure to show that it was unreasonable.

         Plaintiff has also failed to show harmful error with respect to the ALJ's second reason for discounting Plaintiff's testimony-inconsistency with Plaintiff's daily activities. An ALJ may use a claimant's activities to form the basis of an adverse credibility determination if they “contradict [her] other testimony.” See Orn v. Astrue, 495 F.3d 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ reasonably concluded that Plaintiff's impairments were not as severe as he alleged because he could perform activities that contradicted his allegations, such as preparing his own meals, shopping in stores, doing laundry, attending support group meetings, and attending church. See AR at 947-48. Contrary to Plaintiff's argument, the ALJ did not cite to these activities as evidence that Plaintiff could perform specific work activities, but rather to show that Plaintiff's testimony was not consistent with his actual activity level. Id. Plaintiff has thus failed to show that the ALJ harmfully erred in discounting Plaintiff's testimony.

         B. The ALJ Did Not Harmfully Err in Evaluating the Medical Evidence

         Plaintiff contends that the ALJ erred in evaluating the medical evidence. Pl. Op. Br. at 3-12. Plaintiff challenges the ALJ's evaluation of nearly all of the medical opinions in the record, but addresses those opinions in cursory fashion. The Court has repeatedly admonished Plaintiff's counsel not to submit general recitations of the evidence devoid of anything more than conclusory legal arguments. See, e.g., Rachel S. v. Berryhill, No. C18-5377 RSL, 2019 WL 1013469, at *4 (W.D. Wash. Mar. 4, 2019). The Court will not address the ALJ's weighing of medical opinions for which Plaintiff has not identified specific errors, including the opinions of Lezlie Pickett, Ph.D., Robert Corliss, M.D., and Brian Brendel, M.D. See Carmickle, 533 F.3d at 1161 n.2 (noting that the court “‘ordinarily will not consider matters on appeal that are not specifically and distinctly argued in an ...


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