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Elmer Vaughn H. v. Commissioner of Social Security

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

June 10, 2019

ELMER VAUGHN H., Plaintiff,


          Michelle L. Peterson United States Magistrate Judge.


         Plaintiff 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).


         Plaintiff 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.

         On July 3, 2014, Plaintiff applied for benefits, alleging disability as of March 1, 2011.[1]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.

         Utilizing the five-step disability evaluation process, [2] the ALJ found:

Step one: Plaintiff engaged in substantial gainful activity as of July 3, 2014.[3]
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.[4]
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.

         As the 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.)


         Under 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.

         “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 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. Id.


         A. The ALJ Did Not Err in Discounting Plaintiff's Symptom Testimony

         1. Legal Standards for Evaluating Plaintiff's Testimony

         It is 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).

         When 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)).

         2. The ALJ Provided Several Clear and Convincing Reasons for Discounting Plaintiff's Testimony

         Plaintiff 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.

         a. Inconsistent Statements

         The 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 testimony.

         Although 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 ...

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