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Denisa M. M. v. Commissioner of Social Security

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

July 16, 2019

DENISA M. M., Plaintiff,


          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 Plaintiff's 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. 3.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he failed to provide any specific, clear and convincing reason, supported by substantial evidence, to reject Plaintiff's subjective symptom testimony. Had the ALJ properly considered Plaintiff's subjective symptom testimony, the 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 Social Security Commissioner (“Commissioner”) for further proceedings consistent with this Order.


         On March 4, 2016, Plaintiff filed an application for DIB, alleging disability as of September 7, 1993. See Dkt. 6, Administrative Record (“AR”) 12. As Plaintiff has sufficient DIB coverage to remain insured through September 30, 1996, the relevant inquiry is whether Plaintiff established disability between the alleged onset date - September 7, 1993 - and the date last insured - September 30, 1996.[1] See AR 12. Plaintiff's application was denied upon initial administrative review and on reconsideration. See AR 12. ALJ C. Howard Prinsoloo held a hearing on November 3, 2017. AR 34-56. In a decision dated January 22, 2018, the ALJ determined Plaintiff to be not disabled. AR 9-25. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 1-8; 20 C.F.R. § 404.981.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) provide any specific, clear and convincing reason to reject Plaintiff's subjective symptom testimony; (2) properly evaluate her depression at Steps Two and Three of the sequential evaluation process; properly consider medical records from T.W. Martin Jr., M.D.; Richard M. West, M.D.; Richard D. Swetman, DC; and Anna Larson Spink, PT; and provide germane reasons to reject lay testimony from Plaintiff's husband; and (3) provide an RFC determination that is complete and supported by substantial evidence. Dkt. 8, pp. 2-17. Plaintiff requests the Court remand this matter for an award of benefits. Id. at pp. 17-18.


         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)).


         I. Whether the ALJ provided legally sufficient reasons to reject Plaintiff's subjective symptom testimony.

         Plaintiff argues the ALJ failed to provide any clear and convincing reason to reject her subjective symptom testimony. Dkt. 8, pp. 13-15.

         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. 1995) (citation omitted). The ALJ “must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Id.; see also 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.3d at 834 (citation omitted). While Social Security Administration (“SSA”) regulations have eliminated references to the term “credibility, ” the Ninth Circuit has held its previous rulings on claimant's subjective complaints - which use the term “credibility” - are still applicable.[2] See Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029 (Mar. 16, 2016); 2016 WL 1237954 (Mar. 24, 2016); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent). Questions of credibility are solely within the ALJ's control. 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).

         Plaintiff testified that, after a car accident in 1993, her “life just stopped.” See 37, 41. She no longer had the energy to bathe herself, get out of bed, or cook. AR 41. Plaintiff experienced “exhaustion” and “pain” such that even “touching [her] skin” could be “overwhelming” at times. See AR 41. Plaintiff experienced sensitivity, pain, and numbness in her feet, hands, and legs, which she reported was “debilitat[ing].” AR 42. Further, Plaintiff testified that she had anxiety during the relevant period. AR 43.

         Plaintiff also testified that, during the relevant period, she had trouble sitting due to nerve pain in her left buttocks and leg. AR 44-45. As such, Plaintiff was unable to get “comfortable” sitting, and needed to use pillows while sitting. AR 45. Plaintiff also described painful bladder spasms. AR 45-46. Additionally, she testified that she had difficulty with concentration and finishing tasks. ...

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