United States District Court, W.D. Washington, Tacoma
MICHELLE M. L. 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 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.
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.
AND PROCEDURAL HISTORY
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.
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
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
the ALJ provided specific, clear and convincing reasons to
reject Plaintiff's subjective symptom
argues the ALJ failed to provide any specific, clear and
convincing reason to reject her subjective symptom testimony.
Dkt. 11, pp. 4-9.
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. 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).
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.
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.
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 ...