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 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.
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.
applied for disability benefits on April 8, 2011, alleging a
disability onset date of September 20, 2011. 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.
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.
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.
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
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.
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
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.
The ALJ Did Not Harmfully Err in Rejecting
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.
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.
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 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.
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.
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.
The ALJ Did Not Harmfully Err in Evaluating the Medical
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