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Seon-Kyeong K. v. Commissioner of Social Security

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

May 15, 2019

SEON-KYEONG K., Plaintiff,


          David W. Christel, United States Magistrate Judge.

         Plaintiff 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. 5.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in his assessment of Plaintiff's subjective symptom testimony. Had the ALJ properly considered Plaintiff's testimony, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Social Security Commissioner (“Commissioner”) for further proceedings consistent with this Order.


         On March 28, 2014, Plaintiff filed an application for SSI. See Dkt. 11, Administrative Record (“AR”) 25. Plaintiff alleges disability beginning January 1, 2008. See AR 25, 303-04. The application was denied upon initial administrative review and on reconsideration. See AR 25. There have been two hearings in this matter. ALJ Larry Kennedy held the first hearing on December 18, 2015. See AR 53-92. The ALJ continued the hearing to obtain testimony from a medical expert. See AR 25; see also AR 85-91. The ALJ held the second hearing on March 28, 2016. See AR 91-134. In a decision dated October 28, 2016, the ALJ determined Plaintiff to be not disabled. AR 22-49. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 9-14; 20 C.F.R. § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) properly consider her subjective symptom testimony; (2) find her anxiety, panic attacks, and depression were severe impairments at Step Two of the sequential evaluation process, and give appropriate weight to the medical opinion evidence; and (3) meet the burden at Step Five of the sequential evaluation process. Dkt. 13, pp. 4-13. Plaintiff requests the Court remand this matter for an award of benefits. Id. at pp. 11, 13.


         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 provided clear and convincing reasons to discount Plaintiff's subjective symptom testimony.

         Plaintiff argues the ALJ failed to provide any clear and convincing reason to discount her subjective symptom testimony. Dkt. 13, pp. 11-12.

         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. 1995) (citation omitted). The ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Id.; see also 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.3d at 834 (citation omitted). While Social Security Administration (“SSA”) regulations have eliminated references to the term “credibility, ” the Ninth Circuit has held its previous rulings on claimant's subjective complaints - which use the term “credibility” - are still applicable.[1] See Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029 (Mar. 16, 2016); 2016 WL 1237954 (Mar. 24, 2016); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent). Questions of credibility are solely within the ALJ's control. 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).

         Plaintiff alleges disability partly due to mastocytosis, a mast cell syndrome, as well as episodes of anaphylactic shock and fatigue. See AR 319, 343; see also AR 75-76, 81, 83, 100-01, 107-08. Plaintiff maintains her conditions are triggered by environmental, physical, and emotional stressors, such as heat and cold, sounds, exhaustion, and psychological stress. See AR 81, 83-84, 351. Plaintiff states that, when triggered, her “body can go through very severe anaphylaxis at any moment, which can be fatal.” AR 351. As such, Plaintiff stays home and “away from most . . . physical and social activities[.]” AR 351. Plaintiff maintains her conditions cause to become “very easily fatigued, ” such that she is unable to work. AR 76; see also AR 352. Plaintiff states that reading in bed makes her so fatigued that she needs a nap. AR 75-76. Plaintiff testified that her mastocytosis makes it difficult to concentrate due to “brain fog.” AR 81; see also AR 83, 351, 356. Plaintiff asserts she has “poor memory and concentration, ” and it is “difficult to finish a task[, ] especially if it has a time limit.” AR 351; see also AR 356. Plaintiff claims she can pay attention “between 0-10 minutes, ” and walk “between 0-30 minutes” before needing to stop and rest. AR 356. She handles stress “very poorly, ” and suffers from physical and psychological symptoms when stressed. See AR 357.

         The ALJ found Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 32. However, Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]” AR 32. Specifically, the ALJ discounted Plaintiff's ...

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