United States District Court, W.D. Washington, Tacoma
KELLEY J. S., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel, United States Magistrate Judge.
filed this action, pursuant to 42 U.S.C. § 405(g), for
judicial review of Defendant's denial of her application
for disability insurance benefits (“DIB”).
Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil
Procedure 73 and Local Rule MJR 13, the parties have
consented to have this matter heard by the undersigned
Magistrate Judge. See Dkt. 2.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) erred when she
failed to provide clear and convincing reasons supported by
substantial evidence for discounting Plaintiff's
subjective symptom testimony. Had the ALJ properly considered
Plaintiff's subjective complaints, Plaintiff's
residual functional capacity (“RFC”) may have
included additional limitations. The ALJ's error is,
therefore, not harmless, and this matter is reversed and
remanded pursuant to sentence four of 42 U.S.C. § 405(g)
to the Commissioner of Social Security
(“Commissioner”) for further proceedings
consistent with this Order.
AND PROCEDURAL HISTORY
March 30, 2015, Plaintiff filed an application for DIB,
alleging disability as of the date of her application.
See Dkt. 8, Administrative Record (“AR”)
15. The application was denied upon initial administrative
review and on reconsideration. See AR 15. A hearing
was held before ALJ Marilyn S. Mauer on February 27, 2017.
See AR 30-43. A second, supplemental, hearing was
held before the ALJ on July 10, 2017. AR 44-68. In a decision
dated November 3, 2017, the ALJ determined Plaintiff was not
disabled. See AR 15-24. Plaintiff's request for
review of the ALJ's decision was denied by the Appeals
Council, making the ALJ's decision the final decision of
the Commissioner. See AR 1-5; 20 C.F.R. §
404.981, § 416.1481.
Opening Brief, Plaintiff maintains the ALJ erred by failing
to properly: (1) consider Plaintiff's subjective symptom
testimony; (2) consider lay witness testimony; and (3) assess
Plaintiff's RFC and her ability to perform her past
relevant work. Dkt. 12, p. 1. Plaintiff requests remand for
an award of benefits. Id. at pp. 16-17.
to 42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits if 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 n.1 (9th Cir. 2005)
(citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th
Whether the ALJ provided specific, clear, and convincing
reasons for finding Plaintiff's
subjective symptom testimony not fully supported.
contends the ALJ erred by failing to provide specific, clear,
and convincing reasons for finding Plaintiff's subjective
symptom testimony not fully supported. Dkt. 8. To reject a
claimant's subjective complaints, the ALJ must provide
“specific, cogent reasons for the disbelief.”
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)
(citation omitted). The ALJ “must identify what
testimony is not credible and what evidence undermines the
claimant's complaints.” Id.; Dodrill
v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless
affirmative evidence shows the claimant is malingering, the
ALJ's reasons for rejecting the claimant's testimony
must be “clear and convincing.” Lester,
81 F.2d at 834. Questions of credibility are solely within
the control of the ALJ. Sample v. Schweiker, 694
F.2d 639, 642 (9th Cir. 1982). The Court should not
“second-guess” this credibility determination.
Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984).
In addition, the Court may not reverse a credibility
determination where that determination is based on
contradictory or ambiguous evidence. Id. at
testified she cannot work due to fibromyalgia, severe
osteoarthritis, a herniated disk in her back, and sciatica.
AR 47-48. She also has emotional breakdowns, severe anxiety,
and depression. AR 48. Plaintiff states she can lift and
carry ten pounds no higher than her chest. AR 48. She can sit
for about 30 minutes in a chair during the average day before
she needs to get up and move because she feels restless and
achy. AR 49. Plaintiff can stand continuously for
approximately 10 to 15 minutes before her legs and lower back
start aching and she needs to move. AR 49. Plaintiff
testified she can walk for approximately 15 minutes without
interruption and does so about three times a week. AR 50-51.
She climbs four stairs daily. AR 52. Plaintiff takes a nap
for one to three hours every day, and Plaintiff has to stay
in bed one to two days per month due to feeling sick and
aching from head to toe. AR 51, 62.
typical day, Plaintiff watches television, takes a shower,
takes a nap, works on a jigsaw puzzle, and fixes breakfast
and dinner. AR 57. Plaintiff is able to bathe and dress
herself and drives two to three times per week. AR 50. At
home, she is responsible for laundry, cooking, grocery
shopping, some gardening, and keeping the house clean. AR 52.
In her Adult Function Report, Plaintiff stated that she cooks
sandwiches, soup, and cereal. AR 245. She no longer prepares
big meals and eats more frozen meals. AR 245. Plaintiff
usually shops on the weekend with her son and has assistance
with heavier items. AR 57.
testified that she takes oxycodone, Paxil,  and a blood
pressure medication. AR 55. The medications are effective,
but cause ...