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David B. v. Commissioner of Social Security

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

September 17, 2019

DAVID B., Plaintiff,



         Plaintiff seeks review of the denial of his application for Supplemental Security Income. Plaintiff contends the ALJ erred by rejecting his testimony, two lay witnesses' statements, and three medical opinions. Dkt. 13. As discussed below, the Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.


         Plaintiff is currently 51 years old, has a marginal education, and has worked as a truck driver, taxi driver, and lubrication technician. Dkt. 9, Administrative Record (AR) 663. Plaintiff applied for benefits in August 2012, alleging disability as of April 1, 2012. AR 70. Plaintiff's application was denied initially, on reconsideration, and by a March 2014 ALJ decision. AR 69, 80, 24-34. Plaintiff appealed to this court, which remanded because the ALJ erred by rejecting Plaintiff's testimony and a lay witness statement. AR 766-80. On remand, after the ALJ conducted hearings in October 2017 and February 2018, the ALJ issued a decision finding Plaintiff not disabled. AR 693, 675, 646-65.


         Utilizing the five-step disability evaluation process set forth in 20 C.F.R. § 416.920, the ALJ found:

Step one: Plaintiff has not engaged in substantial gainful activity since the August 2012 application date.
Step two: Plaintiff has the following severe impairments: chronic obstructive pulmonary disease (COPD); status post small bowel resection, with partial bowel obstruction; and degenerative disc disease of the cervical spine, status post discectomy and fusion.
Step three: These impairments do not meet or equal the requirements of a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1.
Residual Functional Capacity: Plaintiff can perform less than the full range of light work. He cannot climb ladders, ropes, or scaffolds. He cannot be exposed to hazards, dusts, odors, fumes, or gases. He can occasionally stoop and crouch. He requires a sit/stand alternative, defined as the ability to change position after 30 to 60 minutes for 3 to 5 minutes while remaining on task.
Step four: Plaintiff cannot perform past relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, he is not disabled.

         AR 649-65. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. AR 1.


         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. Plaintiff's Testimony

         Plaintiff testified that he has nausea and abdominal pain about three to five days per week. AR 716, 719. He has been hospitalized about three times for abdominal blockages. 721-22. Every day he has diarrhea about four times. AR 732. Plaintiff has chronic neck pain that makes his neck stiffen and his fingers tingle and burn. AR 716, 724. He has trouble grasping with his left hand. AR 733. His COPD is a problem if he walks a lot. AR 717. He can walk about a block before needing to rest for four or five minutes. AR 727-28. He has no issues with sitting or standing. AR 728, 731. The heaviest thing he lifts is a gallon of milk. AR 728. Plaintiff has problems with short-term memory, concentration, and completing tasks. AR 729. He started counseling because he was very depressed and did not want to live anymore, but antidepressant medication helped. AR 726-27.

         Where, as here, an ALJ determines a claimant has presented objective medical evidence establishing underlying impairments that could cause the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only discount the claimant's testimony as to symptom severity by providing “specific, clear, and convincing” reasons that are supported by substantial evidence. Trevizo, 871 F.3d at 678. The ALJ discounted Plaintiff's testimony because it was inconsistent with his daily activities and the evidence in the overall record, and because Plaintiff's impairments improved when he complied with his doctor's recommendations. AR 654, 662.

         The Commissioner argues that the ALJ also rejected Plaintiff's testimony because Plaintiff had not quit smoking tobacco and thus failed to comply with his doctors' recommendations. Dkt. 14 at 10. But the ALJ only mentioned the failure to quit smoking in the context of determining that Plaintiff was not disabled even with symptoms worsened by smoking. AR 662-63. This was not a reason to reject Plaintiff's testimony.

         1. ...

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