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Kelley J. S. v. Commissioner of Social Security

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

July 12, 2019

KELLEY J. S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel, United States Magistrate Judge.

         Plaintiff 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.

         After 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.

         FACTUAL AND PROCEDURAL HISTORY

         On 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.

         In the 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.

         STANDARD OF REVIEW

         Pursuant 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 Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ provided specific, clear, and convincing reasons for finding Plaintiff's subjective symptom testimony not fully supported.

         Plaintiff 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 579.[1]

         Plaintiff 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.

         On a 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.

         Plaintiff testified that she takes oxycodone, Paxil, [2] and a blood pressure medication. AR 55. The medications are effective, but cause ...


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