United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE WITH PREJUDICE
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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
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
Step five: As there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform, he is not disabled.
649-65. The Appeals Council denied Plaintiff's request
for review, making the ALJ's decision the
Commissioner's final decision. AR 1.
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).
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.
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.
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.