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Richard S. v. Commissioner of Social Security

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

September 4, 2019

RICHARD S., Plaintiff,



         Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. He contends the ALJ erred when he failed to (1) provide clear and convincing reasons for rejecting Plaintiff's testimony; (2) provide specific and legitimate reasons for rejecting an examining physician's opinion; (3) properly account for a DDS consultant's opinion in his residual functional capacity (“RFC”) finding; and, (4) provide germane reasons for rejecting the testimony of Plaintiff's wife. Dkt. 10.

         As discussed below, 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 was 48 years old on the date of the ALJ's decision. Tr. 165. He graduated from high school and attended three years of college. Tr. 46. He served in the Navy from 1990 to 1997, the Army from 1999 to 2002, and as a heavy equipment mechanic at Fort Lewis for the Department of Defense from 2003 until 2016. Tr. 46, 165, 515, 638. During that time, Plaintiff had four back and neck surgeries. He complains of tension headaches and migraines that lasted from a couple of hours to days. Tr. 51. He returned to work after his last two surgeries at a light, less than full-time level, but was unable to continue. He was medically retired in March 2018. Tr. 52. He has a 100% Veteran's Association (“VA”) disability rating for a service connected disability. Tr. 495.

         On September 25, 2016, Plaintiff applied for Disability Insurance Benefits with an alleged onset date of August 13, 2016. Tr. 159-68. He later amended the onset date to July 26, 2017. Tr. 15. His application was denied initially and on reconsideration. Tr. 65-99. A hearing was held on May 16, 2018, before ALJ Keith Allred. Tr. 34-64. On August 29, 2018, Judge Allred issued an unfavorable decision. Tr. 12-33. On January 22, 2019, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final agency decision. Tr. 1-6. Plaintiff brings this action for judicial review pursuant to 42 U.S.C. § 405(g).


         Utilizing the five-step disability evaluation process, [1] the ALJ found that Plaintiff had not performed substantial gainful activity since his amended onset date at step one of the sequential evaluation process. Tr. 15. At step two, Judge Allred found that Plaintiff suffered from severe degenerative disc disease, major joint dysfunction (right knee disorder), affective disorder, and migraine. Tr. 17. At step three, he found that these impairments did not meet or equal any of the Listings. Id. Judge Allred went on to find that Plaintiff had the RFC to perform light work with occasional postural limitations and overhead reaching with the left upper extremity; no exposure to extremes of cold, heavy vibrations, or hazards; and no interaction with the public. He could work in the vicinity of others, but not in cooperative teams, group meetings, or other group activities, and needed a stable work routine with few changes. Tr. 20. At step four, relying on the testimony of a vocational expert (“VE”), Judge Allred found Plaintiff was unable to perform his past relevant work, but could perform other work at step five and, therefore, was not disabled. Tr. 27.


         A. Plaintiff's Testimony

         The ALJ is responsible for weighing a claimant's allegations and resolving ambiguities in the evidence. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). An ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated . . . .” SSR 16-3p, 2017 WL 5180304, *10. If a claimant has an underlying impairment that could reasonably be expected to produce the symptoms alleged, and there is no evidence of malingering, an ALJ may discredit the claimant's subjective pain testimony by providing “specific, clear, and convincing reasons” for doing so. See, e.g., Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999). Regardless of the standard, “questions of credibility and resolutions of conflicts in the testimony are functions solely of the [ALJ].” Id. Here, the ALJ provided multiple reasons for discounting Plaintiff's subjective complaints based on inconsistencies and other evidence. Tr. 22-23. Because the ALJ provided multiple reasons, any error is harmless if a valid reason remains. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

         First, the ALJ noted that Plaintiff's treating medical providers found him with fewer functional limitations than those Plaintiff reported. Plaintiff testified he could not manage a light-duty job full time (Tr. 49), and he needed to lie down at least six times a day for between 30 minutes to nearly two hours. Tr. 54. On January 24, 2017, Plaintiff's treating physician Dr. Terrill Utt opined that Plaintiff could perform light work activity with no pushing, pulling, or lifting greater than 20 pounds and no overhead working, or working at heights. Tr. 22 (citing Ex. 4F, p. 8). The ALJ gave Dr. Utt's opinions considerable weight as they are based on an established and ongoing treatment relationship and firsthand knowledge of Plaintiff's physical impairments and symptoms. Id. In addition, Anne Albert, P.A. and Gregory Raapana, P.A. also concluded that Plaintiff maintained the capacity to lift at least 20 pounds and could continue working. Tr. 257, 278. The ALJ also noted that none of Plaintiff's treating sources concluded that Plaintiff's impairments and symptoms would be preclusive of all work at any level of exertion and none subsequently revised their opinions or documented worsening of Plaintiff's impairments and symptoms. Tr. 22-23. The ALJ did not err in considering contradictory evidence from Plaintiff's treating sources when weighing Plaintiff's testimony. When weighing a claimant's statements, the ALJ may consider “testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-959 (9th Cir. 2002). And when a claimant's statements contradict the medical record, that “is a sufficient basis for rejecting the claimant's subjective testimony.” Carmickle v. Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008) (Plaintiff's testimony that he can lift only 10 pounds occasionally versus physician's opinion that he can lift up to 10 pounds frequently).

         Second, the ALJ noted that Plaintiff has longstanding degenerative disorders of the spine, which predated the alleged onset of disability by a “significant margin” and that after Plaintiff injured his spine in 2002 and was honorably discharged from Army service on that basis, he began work as a heavy equipment mechanic at Fort Lewis, and persisted in that capacity for years despite his spinal impairments and migraines. Tr. 23. The ALJ also cited to medical evidence that Plaintiff's pain improved with treatment. Id. In July 2017, after Plaintiff's cervical spine surgery, his physician noted that his spine was improving with physical therapy and recommended simply continuing with that conservative treatment. Tr. 583. Plaintiff was also taking medication for his chronic pain, which his physician noted in March 2018, was stable. Tr. 659. And Plaintiff underwent a laminectomy procedure that resulted in “resolution of his bilateral lower extremity symptoms”. Tr. 575. The ALJ did not err in this assessment as impairments that can be controlled with treatment are not disabling. Warre ex rel. E.T. IV v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).

         Third, the ALJ pointed out that Plaintiff worked in the past despite Plaintiff's alleged disabling impairments. Tr. 23. For example, Plaintiff complained of migraines when working for the Navy, work that dated back to 1997 (Tr. 306, 480); he reported that following deployments to the Persian Gulf, he experienced symptoms that included joint and muscle pain and headaches (Tr. 603); and even though he was discharged from service for medical reasons, he worked as a heavy equipment operator for years after his discharge despite his headaches (see, e.g., Tr. 213 (issues with headaches began 12 years prior); see also Tr. 169-72, 176-77 (substantial gainful employment years after he left the military). Plaintiff also alleged he was irritable (Tr. 514) and had difficulty getting along with others. Tr. 220. The ALJ noted that Plaintiff reported mental health symptoms also dating back to 1997 when he left the Navy (Tr. 514) but was able to maintain employment thereafter. Based on the foregoing, the ALJ did not err. An ALJ may discount a claimant's allegations that an impairment is disabling when the alleged impairment did not previously prevent him from ...

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