United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION
J. Pechman United States District Judge.
MATTER is before the Court upon Plaintiff's Objections
(Dkt. No. 11) to the Report and Recommendation of the
Honorable Theresa L. Fricke, United States Magistrate Judge.
(Dkt. No. 10.) Having reviewed the Report and Recommendation,
the Objections, and all related papers, the Court ADOPTS the
Report and Recommendations, AFFIRMS the Commissioner's
decision, and DISMISSES this case with prejudice.
relevant facts and procedural background are set forth in
detail in the Report and Recommendation. (Dkt. No. 10.)
Plaintiff raises three objections to the Report and
Recommendation, which concludes that the Commissioner's
decision should be affirmed: (1) the ALJ erred by discounting
his symptom testimony; (2) the ALJ erred by rejecting the
opinions of several medical sources; and (3) the ALJ erred by
finding his tinnitus a non-severe impairment at step two.
(Dkt. No. 11.)
Federal Rule of Civil Procedure 72, the Court must resolve de
novo any part of the Magistrate Judge's Report and
Recommendation that has been properly objected to and may
accept, reject, or modify the recommended disposition.
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
Plaintiff's Symptom Testimony
argues that the ALJ erred by discounting his testimony based
on conflict with his daily activities, because none of the
activities the ALJ relied on show he is able to perform
fulltime work. (Dkt. 11 at 3.) However, an ALJ may discount a
claimant's testimony based on daily activities either
because they meet the threshold for transferable work skills
or because they contradict her testimony. Orn v.
Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Plaintiff
testified that the ringing in his ears is “so loud
[that it] just interferes with everything in my daily
life….” (Dkt. 6, Admin. Record (AR) 62.) He
“sit[s] in quiet places” to reduce his symptoms.
(AR 56.) This testimony was contradicted by, among other
activities, driving a Model T car and taking airplane
flights. Plaintiff flew to Hawaii in 2013. (AR 72-73.)
Plaintiff argues that this is irrelevant because it was
before his alleged onset date, but it was after his tinnitus
had begun. (AR 73.) He also flew to San Diego in 2014 to go
to Legoland. (AR 74.) In addition to the flight, Legoland
involved “a lot of sensory input.” (AR 94.) Even
though driving the Model T is “loud, ” Plaintiff
still occasionally drove it around the block during the
summer before the hearing and was planning to drive it again
the next summer. (AR 89, 55-56.) This was substantial
evidence supporting the ALJ's finding that
Plaintiff's activities contradicted his testimony.
Court concludes the ALJ did not err by discounting
Plaintiff's symptom testimony.
Brenda Havellana, Ph.D.
contends the ALJ erred by interpreting psychologist Dr.
Havellana's report as an opinion of his tinnitus and
discounting it on those grounds. (Dkt. 11 at 10.) Plaintiff
misinterprets the ALJ's decision. The ALJ credited Dr.
Havellana's psychological evaluation but, to the extent
her report could be interpreted as “an assessment of
the claimant's inability to work due to tinnitus, ...