United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING
Theresa L. Fricke United States Magistrate Judge.
I. has brought this matter for judicial review of
defendant's denial of her application for disability
insurance benefits. The parties have consented to have this
matter heard by the undersigned Magistrate Judge. 28 U.S.C.
§ 636(c), Federal Rule of Civil Procedure 73; Local Rule
MJR 13. For the reasons below, the undersigned reverses
defendant's decision to deny benefits and remands for an
award of benefits.
ISSUE FOR REVEW
ALJ err in discounting plaintiff's testimony about her
FACTUAL AND PROCEDURAL HISTORY
filed an application for a period of disability and
disability insurance benefits, alleging that she became
disabled beginning October 10, 2009. Administrative Record
(AR) 11, 541. The end of the relevant period is her
date-last-insured, March 31, 2012. AR 543; see Macri v.
Chater, 93 F.3d 540, 543 (9th Cir. 1996) (claimant must
prove she became disabled before expiration of disability
plaintiff's third appeal to this Court based on the
Social Security Administration's rejections of her
application. Plaintiff's application was initially denied
on initial administrative review, on reconsideration, and
after a hearing before an administrative law judge (ALJ). AR
11-19. On review, this Court found the ALJ erred in
considering plaintiff's subjective symptom testimony and
remanded for further proceedings. AR 328-32 (February 2016
order remanding). On remand, an ALJ found in another written
decision that plaintiff was not disabled. AR 252-61. On
review of that decision, this Court again found that the ALJ
had erred in rejecting plaintiff's testimony. AR 624-28
(March 2017 order remanding).
remand a second time, the ALJ held another hearing, and
plaintiff and a vocational expert testified. AR 560-606. In a
written decision, the ALJ found that plaintiff's bipolar
disorder is a severe impairment. AR 543. The ALJ concluded
that during the relevant period, plaintiff could perform jobs
that exist in significant numbers in the national economy and
therefore that she was not disabled. AR 552-53.
again appealed to this Court. Dkt. 1, Dkt. 8.
STANDARD OF REVIEW
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576).
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). The Court is required to weigh both the evidence that
supports, and evidence that does not support, the ALJ's
conclusion. Id. The Court may not affirm the
decision of the ALJ for a reason upon which the ALJ did not
Commissioner uses a five-step sequential evaluation process
to determine whether a claimant is disabled, and at step four
assesses a claimant's residual functional capacity (RFC)
to determine whether a claimant can perform past relevant
work. If the claimant cannot perform past work, the
Commissioner then uses the RFC to determine at step five
whether the claimant can adjust to other work. Kennedy v.
Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). The
Commissioner has the burden of proof at step five.
Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir.
1999). The Commissioner can ...