United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE
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.
ISSUES FOR REVEW
the ALJ err in evaluating Plaintiff's subjective
the ALJ err in evaluating the opinion evidence?
the ALJ err in assessing Plaintiff's residual functional
FACTUAL AND PROCEDURAL HISTORY
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.
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
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.
STANDARD OF REVIEW
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.
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.
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).
Whether the ALJ properly evaluated Plaintiff's subjective
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.
Whether the ALJ properly evaluated Plaintiff's
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
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).
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
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.
Whether the ALJ properly evaluated the treatment record
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. ...