United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DENIAL OF
B. Leighton, United States District Judge.
matter is before the Court on Plaintiff Mary H.'s
Complaint (Dkt. 3) for review of the Commissioner of Social
Security's denial of her application for disability
insurance benefits. This is the second time this matter has
been before the Court. See Admin. Record
(“AR”) (Dkt. 9) at 722-27.
last met the insured status requirements of the Social
Security Act on December 31, 2006. Id. at 627.
Through her date last insured, Plaintiff had severe
impairments of “history of cervical spine degenerative
disc disease status post C7-T1 fusion surgery.”
Id. at 628. Plaintiff also had the non-severe
impairment of lupus. Id.
applied for disability benefits on May 31, 2012, alleging a
disability onset date of May 30, 2001. See Id. at
167-71. Plaintiff's application was denied on initial
review and on reconsideration. Id. at 82-88, 90-101.
At Plaintiff's request, Administrative Law Judge
(“ALJ”) Riley Atkins held a hearing on
Plaintiff's claims. Id. at 33-80. On May 13,
2014, ALJ Atkins issued a decision denying Plaintiff's
claims for disability benefits. Id. at 17-25. The
Appeals Council reviewed the decision and adopted ALJ
Atkins's findings. Id. at 8-10. Plaintiff then
sought review before this Court. See Id. at 710-13.
November 29, 2016, Magistrate Judge James Donohue issued a
report and recommendation (“R&R”) reversing
and remanding ALJ Atkins's decision for further
administrative proceedings. Id. at 731-41. The
Commissioner had conceded error, but the parties disputed
whether the matter should be remanded for an award of
benefits or for further proceedings. See Id. at
731-32. Magistrate Judge Donohue determined that there were
evidentiary issues that needed to be resolved before a
disability finding could be made, and thus remanded for
further administrative proceedings. Id. at 738-40.
District Judge Robert Lasnik subsequently entered an order
adopting the R&R. Id. at 729-30.
remand, ALJ Rudolph Murgo held a second hearing, at which he
took testimony from impartial medical expert John Kwock,
M.D., and vocational expert Richard Hincks. Id. at
653-80. ALJ Murgo issued a decision on July 2, 2018, in which
he found that Plaintiff was not disabled prior to her date
last insured of December 31, 2006. Id. at 625-36.
ALJ Murgo thus denied Plaintiff's claim for disability
insurance benefits. Id. at 636. The Appeals Council
did not assume jurisdiction, so the ALJ's decision became
the Commissioner's final decision. See 20 C.F.R.
argues that the ALJ erred in (a) rejecting Plaintiff's
testimony, (b) evaluating the medical evidence, and (c)
rejecting the lay witness testimony of Jan Nardone. Pl. Op.
Br. (Dkt. 11) at 1. Plaintiff argues that the Court should
remand this matter for an award of benefits. Id.
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 Harmfully Erred in Rejecting Plaintiff's
contends that the ALJ erred in rejecting her subjective
symptom testimony. Pl. Op. Br. at 15-17. Plaintiff testified
that she injured her neck at work on May 30, 2001. AR at 45.
She testified that she “had instant pain running down
[her] shoulders and [her] arms started going numb.”
Id. She underwent surgery on her cervical spine on
October 22, 2001, and again on March 13, 2002. Id.
at 305-08. Plaintiff testified that her second surgery was
successful “for about six weeks” and then she
started losing the use of her right arm. Id. at 47.
Almost three years later, on January 17, 2005, Plaintiff had
a third surgery on her cervical spine. Id. at
302-04. Plaintiff testified that she had this surgery because
her right arm was going numb and she was losing the use of
her fingers. Id. at 49. Plaintiff had three more
surgeries after her date last insured, in 2008, 2010,
2012. See Id. at 383-86, 606-07, 1458.
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; she does not have to show that the
impairment could reasonably be expected to cause the severity
of the symptoms alleged. Id. ALJ Murgo found that
Plaintiff met this step because her medically determinable
impairments could reasonably be expected to cause the
symptoms she alleged. AR at 629.
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).
Murgo found that 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 at
629-30. ALJ Murgo reasoned that Plaintiff's statements
were inconsistent with the overall medical evidence and
contradicted by the lack of medical records from 2009-12,
which the ALJ took to mean that Plaintiff did not receive
treatment during that time. Id. at 629-31.
ALJ's reasons do not withstand scrutiny. First, An ALJ
may reject a claimant's symptom testimony when it is
contradicted by the medical evidence. See Carmickle v.
Comm'r, Soc. Sec. Admin., 533 F.3d 1155 (citing
Johnson v. Shalala, 60 F.3d 1428, 1434 (9th
Cir.1995)). But the ALJ must do more than summarize the
medical evidence. The ALJ must explain how the medical
evidence contradicts the Plaintiff's testimony. See
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
ALJ Murgo summarized Plaintiff's treatment history during
the alleged disability period, but did not address how the
medical evidence contradicted Plaintiff's testimony.
See AR at 630. Although the ALJ is entitled to
rationally interpret the medical evidence, he must point to
specific facts in the record supporting his interpretation
and explain their relevance. See Dodrill, 12 F.3d at
918. ALJ Murgo did not do so.
the lack of medical records from 2009-12, well after
Plaintiff's date last insured, has no bearing on whether
Plaintiff's symptom testimony was consistent with the
evidence. Plaintiff clearly received treatment prior to her
date last insured, as she had multiple neck surgeries.
See AR at 302-08. She had another neck surgery in
2008, making her condition in 2009 and beyond less relevant
to her condition from 2001-06. See Id. at 606-07.
Moreover, Plaintiff had neck surgery in 2010, ...