United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS
AT STEP FIVE
Michelle L. Peterson United States Magistrate Judge.
seeks review of the denial of his application for
Supplemental Security Income and Period of Disability and
Disability Insurance Benefits. Plaintiff contends the
administrative law judge (“ALJ”) erred by failing
to perform a function-by-function assessment required by SSR
96-8p, failing to provide a substantial reason for rejecting
multiple examinations, using a variation on the improper
“sit and squirm” test, finding Plaintiff's
activities of daily living disqualified him from being found
disabled, failing to give legally proper reasons for
rejecting evidence from two lay witnesses, and failing to
properly establish at Step Five of the sequential evaluation
process that jobs existed in significant numbers that were
consistent with the Residual Functional Capacity
(“RFC”). (Dkt. # 12 at 1-2.) As discussed below,
the Court REVERSES the Commissioner's final decision and
REMANDS the case for further administrative proceedings under
42 U.S.C. § 405(g).
was born in 1982, has a GED, and has worked as a fisherman,
steelworker, and millwright. AR at 274, 299. Plaintiff was
last gainfully employed in 2011. Id. at 299.
3, 2014, Plaintiff applied for benefits, alleging disability
as of March 1, 2011.AR at 597. Plaintiff's applications
were denied initially and on reconsideration, and Plaintiff
requested a hearing. Id. at 350. After the ALJ
conducted hearings on December 15, 2016, May 31, 2017, and on
June 23, 2017, the ALJ issued a decision finding Plaintiff
not disabled. Id. at 15-43.
the five-step disability evaluation process,  the ALJ found:
Step one: Plaintiff engaged in substantial gainful activity
as of July 3, 2014.
Step two: Plaintiff has the following severe impairments:
degenerative disc disease of the cervical and thoracic spine;
bilateral carpal tunnel syndrome, status post right carpal
tunnel release surgery; degenerative joint disease of the
right knee, status post arthroscopy; anxiety disorder;
depressive disorder; personality disorder; intermittent
explosive disorder; cannabis use disorder; opioid dependence;
and methamphetamine dependence.
Step three: These impairments do not meet or equal the
requirements of a listed impairment.
Residual Functional Capacity: Plaintiff can perform light
work with the following exceptions: he can frequently stoop
and climb ramps or stairs. He can occasionally kneel, couch,
crawl, and climb ladders, ropes, or scaffolds. He can
frequently handle and finger bilaterally. He can have
occasional exposure to excess vibration and atmospherics (as
defined in the DOT). He can never have exposure to hazardous
machinery and unprotected heights. He can perform
uncomplicated, routine tasks with a reasoning level no
greater than 2. He can have seldom interaction with the
public (defined as less than 1% of the workday or eight
repetitions maximum). He can have occasional interaction with
co-workers that does not require performing tandem tasks.
Step four: Plaintiff cannot perform past relevant work.
Step five: As there are jobs that exist in significant
numbers in the national economy that plaintiff can perform,
plaintiff is not disabled.
Id. at 21-42.
Appeals Council denied Plaintiff's request for review,
the ALJ's decision is the Commissioner's final
decision. AR at 1-6. Plaintiff appealed the final decision of
the Commissioner to this Court. (Dkt. # 4.)
42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits when
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 (9th Cir.
2005). As a general principle, an ALJ's error may be
deemed harmless where it is “inconsequential to the
ultimate nondisability determination.” Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited
sources omitted). The Court looks to “the record as a
whole to determine whether the error alters the outcome of
the case.” Id.
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 Commissioner. Thomas v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002). When the evidence is
susceptible to more than one rational interpretation, it is
the Commissioner's conclusion that must be upheld.
The ALJ Did Not Err in Discounting Plaintiff's Symptom
Legal Standards for Evaluating Plaintiff's Testimony
the province of the ALJ to determine what weight should be
afforded to a claimant's testimony, and this
determination will not be disturbed unless it is not
supported by substantial evidence. A determination of whether
to accept a claimant's subjective symptom testimony
requires a two-step analysis. 20 C.F.R. §§
404.1529, 416.929; Smolen, 80 F.3d at 1281. First,
the ALJ must determine whether there is a medically
determinable impairment that reasonably could be expected to
cause the claimant's symptoms. 20 C.F.R. §§
404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82.
Once a claimant produces medical evidence of an underlying
impairment, the ALJ may not discredit the claimant's
testimony as to the severity of symptoms solely because they
are unsupported by objective medical evidence. Bunnell v.
Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc);
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1988). Absent affirmative evidence showing that the claimant
is malingering, the ALJ must provide “clear and
convincing” reasons for rejecting the claimant's
testimony. Burrell v. Colvin, 775 F.3d 1133, 1136-37
(9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d
1104, 1112 (9th Cir. 2012)). See also Lingenfelter
v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
evaluating a claimant's subjective symptom testimony, the
ALJ must specifically identify what testimony is not credible
and what evidence undermines the claimant's complaints;
general findings are insufficient. Smolen, 80 F.3d
at 1284; Reddick, 157 F.3d at 722. The ALJ may
consider “ordinary techniques of credibility
evaluation, ” including a claimant's reputation for
truthfulness, inconsistencies in testimony or between
testimony and conduct, daily activities, work record, and
testimony from physicians and third parties concerning the
nature, severity, and effect of the alleged symptoms.
Thomas, 278 F.3d at 958-59 (citing Light v.
Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
The ALJ Provided Several Clear and Convincing Reasons for
Discounting Plaintiff's Testimony
argues the ALJ erred in evaluating his testimony regarding
his activities of daily living. (Dkt. # 12 at 1.) Plaintiff
did not challenge any of the ALJ's other reasons for
discrediting his testimony. Specifically, the ALJ gave the
following reasons for discounting Plaintiff's
allegations: (1) Plaintiff testified that he worked as a
heroin dealer for one year while earning SGA level of income;
(2) Plaintiff made numerous inconsistent statements regarding
his ongoing drug abuse; (3) the record shows Plaintiff
exaggerated the severity of his mental health symptoms and
functioning; (4) the record shows Plaintiff exaggerated the
severity of his physical symptoms and functioning; and (5)
the record shows Plaintiff demonstrated a level of physical
functioning in his personal life in excess of his claimed
limitations. AR at 34-36.
reasons given by the ALJ for discounting Plaintiff's
symptom testimony were clear, convincing, and supported by
substantial evidence. The ALJ noted inconsistent statements
made by Plaintiff in the record regarding his substance
abuse. AR at 34. For example, in 2014, Plaintiff reported
that he had not used marijuana or cocaine in the last 10-12
years. Id. at 1000. However, in 2015, Plaintiff
denied ever using cocaine, despite having previously reported
cocaine use. Id. at 1107. Plaintiff also reported
that his primary care provider was aware that he was
injecting his oxycodone prescriptions (AR at 1211), yet
records from his primary care provider show the prescription
was for oral oxycodone tablets and there is no indication his
provider knew Plaintiff was injecting his medication (AR at
1305-1372). Inconsistent statements regarding drug use are a
clear and convincing reason to discount a claimant's
credibility. Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002) (upholding adverse credibility determination
where claimant had “present[ed] conflicting information
about her drug and alcohol use”). The ALJ could
reasonably conclude that Plaintiff's inconsistent
accounts concerning his substance abuse undermined his
the ALJ cited to some records that are not necessarily
inconsistent (AR at 900, 1023, 1062, 1107, 1183, 1355), this
was harmless error given the other inconsistent statements
cited, in addition to the other reasons the ALJ provided for
discounting Plaintiff's testimony. See ...