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Michelle M. L. S. v. Commissioner of Social Security

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

August 13, 2019

MICHELLE M. L. S., 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 applications for supplemental security income (“SSI”) and 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 state specific, clear and convincing reasons to discount Plaintiff's subjective symptom testimony. Had the ALJ properly considered Plaintiff's 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 February 15, 2015, Plaintiff filed an application for SSI, and on February 26, 2015, Plaintiff filed an application for DIB. See Dkt. 6, Administrative Record (“AR”) 15. In both applications, Plaintiff alleged disability beginning January 1, 1999. AR 15. The applications were denied upon initial administrative review and on reconsideration. See AR 15. ALJ Richard Geib held a hearing on November 28, 2017. AR 40-76. At the hearing, Plaintiff amended her alleged onset date of disability to April 1, 2015. See AR 15, 44-45, 49. In a decision dated January 31, 2018, the ALJ determined Plaintiff to be not disabled. AR 12-39. 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 1-6; 20 C.F.R. §§ 404.981, 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to provide clear and convincing reasons to reject Plaintiff's subjective symptom testimony; and (2) assigning great weight to medical opinion evidence from Dr. Eugene Kester, M.D., yet failing to account for all parts of Dr. Kester's opinion. Dkt. 11, pp. 3-8. Plaintiff requests, due to the ALJ's purported errors, the Court remand this matter for an award of benefits. Id. at pp. 8-9.


         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 specific, clear and convincing reasons to reject Plaintiff's subjective symptom testimony.

         Plaintiff argues the ALJ failed to provide any specific, clear and convincing reason to reject her subjective symptom testimony. Dkt. 11, pp. 4-9.

         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.[1] 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).

         At the hearing, Plaintiff testified that there are days she can “hardly get out of bed” due to back pain. AR 51-52. She reported that sleeping worsens her back pain. AR 57. On a scale of zero to ten, with ten being the worst pain, Plaintiff stated her back pain is typically between 7 and 10, and sometimes at ¶ 10 after sleeping. AR 57. Plaintiff rated her neck pain at ¶ 6 or 7. AR 57. Due to her pain, she is unable to lift her three-year-old grandson. AR 52.

         Plaintiff's knees sometimes buckle, and her neck “gets very stiff and sore” such that it limits her range of motion. AR 54; see also AR 307, 352. Plaintiff testified that her hands get swollen and/or stiffen a couple times a week, which make it difficult to grip or lift items, make a fist, and tie her shoes. AR 62. Plaintiff has trouble sleeping at least two nights per week due to back pain and acid reflux. See AR 61. As a result, she takes daytime naps at least four times per week, for about one hour at a time. AR 61. In addition, Plaintiff stated that she experiences flares of irritable bowel syndrome (“IBS”) lasting from a couple hours up to all-day.

         Plaintiff reported that she began going to the gym because one of her physicians recommended it, but she is limited in the activities she can perform and easily overexerts herself. See AR 53-54. Plaintiff also stated that she joined a bowling league on the advice of one of her counselors. AR 53. While the bowling league takes place once per week, she misses one or two sessions per month due to problems with her back and neck. AR 55. Additionally, Plaintiff currently works 14 hours per week at a convenient store. AR 55-56. She testified that after working, she needs a “recovery day at home” with minimal activities. See AR 56. Moreover, Plaintiff reported that she is unable to vacuum - because it causes burning and soreness in her shoulders - and she cannot do laundry because she cannot reach the ...

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