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Giovanna S. v. Commissioner of Social Security

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

May 21, 2019

GIOVANNA S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          THOMAS S. ZILLY UNITED STATES DISTRICT JUDGE.

         Plaintiff seeks review of the denial of her application for Supplemental Security Income. Plaintiff contends the ALJ erred by discounting her testimony and erred in weighing three medical opinions. Dkt. 9. As discussed below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         BACKGROUND

         Plaintiff is currently 26 years old, has a high school education, and has worked in service and retail. Dkt. 7, Administrative Record (AR) 27, 352. She underwent three back surgeries, in July 2011, April 2012, and October 2013, when she was between the ages of 19 and 21. AR 699. Plaintiff applied for benefits in February 2014, alleging disability as of July 1, 2011. AR 130. Plaintiff's application was denied initially and on reconsideration. AR 129, 145. After the ALJ conducted hearings in November 2016 and August 2017, the ALJ issued a decision finding Plaintiff not disabled. AR 36, 76, 15-28.

         THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [1] the ALJ found:

Step one: Plaintiff has not engaged in substantial gainful activity since the February 2014 application date.
Step two: Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine, obesity, asthma, depressive disorder, anxiety disorder, and personality disorder.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Plaintiff can perform light work, lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds frequently. She can sit, stand, and walk 6 hours per day each. She can frequently climb stairs and ramps. She can occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, and scaffolds. She must avoid concentrated exposure to hazards. She can understand, remember, and carry out simple instructions and make judgments in unskilled work that can be learned in 30 days with little specific vocational preparation needed. She can respond appropriately to supervision and coworkers, and deal with occasional changes in the work environment. Her work must require no contact with the general public to perform work tasks.
Step four: Plaintiff has no past relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, she is not disabled.

AR 17-28. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. AR 1.[3]

         DISCUSSION

         This Court may set aside the Commissioner's denial of Social Security benefits only if the ALJ's decision is based on legal error or not supported by substantial evidence in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Each of an ALJ's findings must be supported by substantial evidence. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 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. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one interpretation, the ALJ's interpretation must be upheld if rational. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). This Court “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         A. Plaintiff's Testimony

         Plaintiff testified that, even with medication, she can only sit or stand for a few minutes at a time and can carry less than ten pounds. AR 83-84, 89. She gets migraines weekly that last two days and require her to lie in bed in complete darkness. AR 92-93.

         Where, as here, an ALJ determines a claimant has presented objective medical evidence establishing underlying impairments that could cause the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only discount the claimant's testimony as to symptom severity by providing “specific, clear, and convincing” reasons that are supported by substantial evidence. Trevizo, 871 F.3d at 678.

         The ALJ addressed Plaintiff's physical and mental allegations separately, and Plaintiff does not challenge the ALJ's discounting of her mental allegations. See Dkt. 9 at 10. The ALJ expressly stated that he discounted Plaintiff's physical symptom testimony because “her physical complaints exceed[ed] the objective medical evidence of record” and were “out of proportion to objective evidence….” AR 21, 22. However, “subjective pain testimony cannot be rejected 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) (citing 20 C.F.R. § 404.1529(c)(2)). Social Security Ruling 16-3p provides that an ALJ “will not disregard an individual's statements about the intensity, persistence, ...


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