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Michael R. v. Commissioner of Social Security

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

August 21, 2019

MICHAEL R., Plaintiff,


          Thomas S. Zilly United States District Judge

         Plaintiff 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. § 405(g).


         Plaintiff 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 456, 431-46.


         Plaintiff's date last insured was December 31, 2017. AR 433. Using the five-step disability evaluation process, [1] 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 impairment.[2]
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 relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that Plaintiff could have performed, he was not disabled.

         AR 434-46. The Appeals Council did not assume jurisdiction, making the 2018 ALJ's decision the Commissioner's final decision.


         This 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).

         A. Fibromyalgia

         At step 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.

         Plaintiff's 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 2017, ...

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