United States District Court, W.D. Washington, Tacoma
ORDER REVERSING THE COMMISSIONER'S DECISION AND
REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
S. Zilly United States District Judge
seeks review of the denial of his application for Disability
Insurance Benefits. Plaintiff contends the ALJ erred by
finding fibromyalgia was not a medically determinable
impairment, and by rejecting several medical opinions, his
testimony, and several lay witnesses statements. Dkt. 11. The
Court REVERSES the Commissioner's final
decision and REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
is currently 46 years old, has a high school education, and
has worked in floor waxing and patient transport. Dkt. 9,
Admin. Record (AR) 444-45. Plaintiff applied for benefits in
May 2013, alleging disability as of February 22, 2012. AR 65.
Plaintiff's applications were denied initially, on
reconsideration, and in a December 2015 ALJ decision. AR 64,
93, 19-31. On appeal to this court, the case was remanded for
further administrative proceedings based on the parties'
stipulation. AR 500-03. While the appeal was pending,
Plaintiff filed a subsequent application, which the Appeals
Council consolidated for remand. AR 550. On remand, after the
ALJ conducted a hearing in June 2018, the ALJ issued a
decision in October 2018 finding Plaintiff not disabled. AR
date last insured was December 31, 2017. AR 433. Using the
five-step disability evaluation process,  the ALJ found
that for the period from the February 2012 alleged onset date
to the December 2017 date last insured:
Step one: Plaintiff did not engage in
substantial gainful activity.
Step two: Plaintiff had the following severe
impairments: degenerative joint disease of the left shoulder,
affective disorder, attention deficit hyperactivity disorder
with learning disorder, and anxiety.
Step three: These impairments did not meet
or equal the requirements of a listed
Residual Functional Capacity: Plaintiff
could perform light work, lifting and carrying 20 pounds
occasionally and 10 pounds frequently, sitting six hours and
standing and walking six hours per day. He could occasionally
reach overhead bilaterally and could not be exposed to
heights. Kneeling and crawling were unlimited, and he could
occasionally climb, crouch, stoop, and balance. He could
perform simple, repetitive tasks, have superficial contact,
and work with supervisors and familiar coworkers.
Step four: Plaintiff could not perform past
Step five: As there are jobs that exist in
significant numbers in the national economy that Plaintiff
could have performed, he was not disabled.
434-46. The Appeals Council did not assume jurisdiction,
making the 2018 ALJ's decision the Commissioner's
Court may set aside the Commissioner's denial of Social
Security benefits only if the ALJ's decision is based on
legal error or not supported by substantial evidence in the
record as a whole. Trevizo v. Berryhill, 871 F.3d
664, 674 (9th Cir. 2017). Each of an ALJ's findings must
be supported by substantial evidence. Reddick v.
Chater, 157 F.3d 715, 721 (9th Cir. 1998).
“Substantial evidence” is more than a scintilla,
less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th
Cir. 1989). The ALJ is responsible for evaluating evidence,
resolving conflicts in medical testimony, and resolving any
other ambiguities that might exist. Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the
Court is required to examine the record as a whole, it may
neither reweigh the evidence nor substitute its judgment for
that of the ALJ. Thomas v. Barnhart, 278 F.3d 947,
954, 957 (9th Cir. 2002). When the evidence is susceptible to
more than one interpretation, the ALJ's interpretation
must be upheld if rational. Burch v. Barnhart, 400
F.3d 676, 680-81 (9th Cir. 2005). This Court “may not
reverse an ALJ's decision on account of an error that is
harmless.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012).
two, the ALJ found that fibromyalgia was not a medically
determinable impairment. AR 434. Plaintiff contends this was
error, and the error was harmful because absent the error the
ALJ “could have credited” a lower lifting
limitation and because the ALJ failed to take into account
Plaintiff's self-reported “symptoms of fatigue and
low energy.” Dkt. 11 at 5, 17.
treating rheumatologist diagnosed fibromyalgia in 2014, and
his providers continued to treat him for fibromyalgia
throughout the relevant period. AR 373, 915, 825. Examining
physician Khanh Nguyen, M.D., diagnosed fibromyalgia in July