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Eugene D. v. Commissioner of Social Security

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

September 4, 2019

EUGENE D., Plaintiff,



         Plaintiff has brought this matter for judicial review of Defendant's denial of his application for disability insurance benefits and supplemental security income. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. As discussed below, the undersigned agrees that the ALJ erred and the ALJ's decision is: (1) reversed and remanded for further administrative proceedings as to the period from April 7, 2014 to present, and (2) reversed and remanded for an award of benefits because plaintiff meets the criteria for disability as to the period between December 8, 2010 and April 6, 2014.


         1. Did the ALJ err in evaluating Plaintiff's subjective allegations?

         2. Did the ALJ err in evaluating the opinion evidence?

         3. Did the ALJ err in assessing Plaintiff's residual functional capacity (“RFC”)?


         This case has a lengthy procedural history. On June 21, 2011, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging a disability onset date of December 8, 2010. AR 13, 164-70, 171-77, 854. Plaintiff's applications were denied upon initial administrative review and on reconsideration. AR 13, 110-17, 121-25, 126-33, 854. A hearing was held before Administrative Law Judge (“ALJ”) David Johnson on November 20, 2012. AR 31-67, 1043-79. In a decision dated January 18, 2013, the ALJ determined Plaintiff to be not disabled. AR 10-26, 926-42. The Social Security Appeals Council denied Plaintiff's request for review on July 23, 2014. AR 1-7, 947-53.[1]

         On September 30, 2014, Plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. AR 955, 966. On September 2, 2015, this Court issued an order reversing the Commissioner's decision to deny benefits and remanding the case for further administrative proceedings. AR 954-68. On December 14, 2015, the Appeals Council issued an order vacating the ALJ's decision of January 18, 2013 and remanding the case for further proceedings consistent with the Court's order. AR 969-73.

         On July 21, 2016 ALJ Glenn G. Meyers held a new hearing. AR 876-925. In a decision dated June 22, 2017, ALJ Meyers issued a revised decision again finding that Plaintiff was not disabled. AR 851-66. On July 26, 2017, Plaintiff filed exceptions to the hearing decision with the Appeals Council. AR 836-38, 849. On October 20, 2017, Plaintiff's representative filed additional, more detailed exceptions with the Appeals Council. AR 835, 844-48. On April 13, 2018, the Appeals Council declined to assume jurisdiction over Plaintiff's claim. AR 829-34. As such, the ALJ's decision of June 22, 2017 is the final decision of the Commissioner subject to judicial review. Plaintiff appealed to this Court and seeks a finding that Plaintiff was disabled beginning on his alleged onset date and asks the Court to remand this case for an award of benefits. Dkt. 13, pp. 18-19.


         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). This requires “more than a mere scintilla” of evidence. Id.

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. Only the reasons identified by the ALJ are considered in the scope of the Court's review. Id.


         The Commissioner uses a five-step sequential evaluation process to determine if a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The ALJ assesses the claimant's RFC to determine, at step four, whether the plaintiff can perform past relevant work, and if necessary, at step five to determine whether the plaintiff can adjust to other work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). The ALJ has the burden of proof at step five to show that a significant number of jobs that the claimant can perform exist in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(e), 416.920(e).

         A. Whether the ALJ properly evaluated Plaintiff's subjective allegations

         Plaintiff argues the ALJ did not properly evaluate his subjective allegations. Dkt. 13, pp. 12-15. In weighing a Plaintiff's testimony, an ALJ must use a two-step process. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether there is objective medical evidence of an underlying impairment that could reasonably be expected to produce some degree of the alleged symptoms. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). If the first step is satisfied, and provided there is no evidence of malingering, the second step allows the ALJ to reject the claimant's testimony of the severity of symptoms if the ALJ can provide specific findings and clear and convincing reasons for rejecting the claimant's testimony. Id.

         1. Whether the ALJ properly evaluated Plaintiff's post-surgical limitations

         Plaintiff alleges that the ALJ erred by citing Plaintiff's improvement following heart surgery in February 2014 as a reason to reject Plaintiff's testimony concerning his limitations. Dkt. 13, p. 12, Dkt. 15, p. 5. The Court finds that the ALJ did not err with respect to this part of the decision.

         Impairments that can be effectively controlled by medication or treatment are not considered disabling for purposes of social security benefits. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).

         The ALJ's analysis is consistent with Plaintiff's own statements. During the initial hearing, Plaintiff testified that lifting even 5 pounds would place stress on his heart and cause him chest pain. AR 46-47. During the second ALJ hearing, held on July 21, 2016, Plaintiff said that he was not sure what his lifting restrictions were after his surgery, but indicated that he could lift up to 10 pounds. AR 917, 919. Plaintiff also stated that his surgery helped “quite a bit” with his shortness of breath. AR 919. The ALJ also cited evidence that following his surgery, Plaintiff's cardiac symptoms, including his shortness of breath and exertional limitations, improved significantly. AR 860-61.

         Plaintiff also argues that the ALJ erred in finding that Plaintiff was able to exercise by walking, since this activity was consistent with a post-surgical recommendation from his physician. Dkt. 13, pp. 12-13. In June 2014, several months after Plaintiff's surgery, Plaintiff's physician prescribed moderate walking three times a week for 30 minutes, as tolerated. AR 1514. The ability to perform even this level of activity represented a significant improvement from Plaintiff's initial hearing testimony, when he stated that he could not climb a flight of stairs without stopping to rest or walk approximately 15 to 20 feet before experiencing shortness of breath. AR 43. Yet the ALJ's findings concerning Plaintiff's exertional capacity were not restricted to Plaintiff's post-surgical limitations as assessed by his physician. The ALJ also cited treatment records that were independent of the assessments made by his post-surgical physician's recommendation - records from 2014 through 2016, showing a significant improvement in Plaintiff's ability to walk longer distances and climb stairs. AR 860-61.

         2. Whether the ALJ properly evaluated the treatment record

         Plaintiff next argues that the ALJ erred in evaluating Plaintiff's allegations concerning dizziness when he failed to discuss a treatment note from November 2013 in which Plaintiff stated that he had increasing shortness of breath on exertion over the previous 6 months to 1 year. Dkt. 13, p. 13, AR 1830. ...

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