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Mary H, v. Commissioner of Social Security

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

May 20, 2019

MARY H,, Plaintiff,


          Ronald B. Leighton, United States District Judge.


         This 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.

         Plaintiff 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.

         Plaintiff applied for disability benefits[1] 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.

         On 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.

         On 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. § 404.984(d).

         Plaintiff 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.


         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 Harmfully Erred in Rejecting Plaintiff's Testimony

         Plaintiff 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, [2] and 2012. See Id. at 383-86, 606-07, 1458.

         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; 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.

         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).

         ALJ 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.

         The 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.

         Second, 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, ...

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