United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING FOR ADDITIONAL
Theresa L. Fricke United States Magistrate Judge
has brought this matter for judicial review of
defendant's denial of his applications for disability
insurance and supplemental security income benefits.
parties have consented to have this matter heard by the
undersigned Magistrate Judge. For the reasons set forth
below, the Court reverses Defendant's decision to deny
benefits and remands for additional proceedings.
ISSUES FOR REVEW
the ALJ err in evaluating Plaintiff's symptom testimony?
the ALJ properly evaluate the medical opinion evidence?
the ALJ err in discounting lay witness evidence?
10, 2011, Plaintiff filed applications for disability
insurance and supplemental security income benefits, alleging
a disability onset date of July 1, 2010. AR 15, 84.
Plaintiff's applications were denied upon initial
administrative review and on reconsideration. Id. A
hearing was held before Administrative Law Judge
(“ALJ”) Kimberly Boyce on July 18, 2012.
Id. In a decision dated September 24, 2012, the ALJ
found that Plaintiff was not disabled. AR 81-101. The Social
Security Appeals Council denied Plaintiff's request for
review on December 17, 2013. AR 102-05. On December 15, 2014,
this Court issued an order affirming the Commissioner's
decision. AR 106-23.
did not file further appeals, and instead initiated new
applications for disability insurance benefits and
supplementary security income on February 20, 2015. AR 15-16,
256-64, 267-73. Plaintiff alleged a disability onset date of
February 1, 2012, but the earliest date he could be found
disabled was September 25, 2012, the date the first ALJ
decision became administratively final. AR 15-16.
second round of applications were denied upon initial
administrative review and on reconsideration. AR 16, 196-99,
204-06, 207-09. A hearing was held before ALJ Larry Kennedy
on April 20, 2017. AR 40-80. In a decision dated September
18, 2017, ALJ Kennedy found that Plaintiff was not disabled.
AR 12-30. The Social Security Appeals Council denied
Plaintiff's request for review on July 6, 2018. AR 1-6.
December 19, 2018, Plaintiff filed a complaint in this Court
seeking judicial review of the ALJ's written decision.
Dkt. 4. Plaintiff asks this Court to reverse the ALJ's
decision and to remand this case for an award of benefits or
additional proceedings. Dkt. 12, p. 18.
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 residual functional capacity
(“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).
case, the ALJ found that Plaintiff had the following severe,
medically determinable impairments: degenerative disc disease
of the lumbar spine; bilateral knee impairment; diabetes
mellitus; obesity; affective disorder (major depressive
disorder, depression, bipolar, mood disorder); and anxiety
related disorder (anxiety, panic, post-traumatic stress
disorder, agoraphobia). AR 18. The ALJ also found that
Plaintiff had a range of non-severe and non-medically
determinable impairments. AR 18-19.
on the limitations stemming from these impairments, the ALJ
assessed Plaintiff as being able to perform a reduced range
of sedentary work. AR 21. Relying on vocational expert
(“VE”) testimony, the ALJ found that Plaintiff
could not perform his past work, but determined that there
were other sedentary, unskilled jobs Plaintiff could perform;
therefore the ALJ determined at step 5 that Plaintiff was not
disabled. AR 28-30.
Whether the ALJ erred in evaluating Plaintiff's
maintains that the ALJ erred in evaluating his subjective
allegations. Dkt. 12, pp. 13-18. In his testimony about his
mental health symptoms, Plaintiff alleged that he would not
be able to get to work every day. AR 58. Plaintiff asserted
that his bipolar depression makes him afraid to leave home
and results in a lack of energy. AR 59-60. Plaintiff
indicated that he would “just for the most part curl up
in a ball” and not leave his bed because he was afraid.
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.
discounting Plaintiff's testimony, the ALJ cited the
inconsistency of Plaintiff's allegations with physical
and mental status examinations. AR 22-23. Inconsistency with
objective evidence may serve as a clear and convincing reason
for discounting Plaintiff's testimony. Regennitter v.
Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297
(9th Cir. 1998). But an ALJ may not reject a claimant's
subjective symptom testimony “solely because
the degree of pain alleged is not supported by objective
medical evidence.” Orteza v. Shalala, 50 F.3d
748, 749-50 (9th Cir. 1995) (internal quotation marks
omitted, and emphasis added); Byrnes v.
Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying
rule to subjective complaints other than pain).
has cited an additional reason for discounting
Plaintiff's testimony, namely the inconsistency of
Plaintiff's allegations with some of his physical and
social activities. AR 23-24. An ALJ may discredit a
claimant's testimony when the claimant reports
participation in everyday activities indicating capacities
that are transferable to a work setting. See Morgan v.
Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th
disability claimants should not be penalized for attempting
to lead normal lives in the face of their limitations.
See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th
Cir.2001) (“This court has repeatedly asserted that the
mere fact that a plaintiff has carried on certain daily
activities, such as grocery shopping, driving a car, or
limited walking for exercise, does not in any way detract
from her credibility as to her overall disability. One does
not need to be ‘utterly incapacitated' in order to
be disabled.”), citing Fair v. Bowen, 885 F.2d
597, 603 (9th Cir.1989).
assessing Plaintiff's allegations concerning his
impairments, the ALJ cited Plaintiff's hearing testimony:
According to the claimant, it is difficult for him to keep a
schedule and/or be around others. The claimant testified that
on some days it is difficult for him to get up and do simple
things such as personal care and/or taking out the trash. He
also related that he is unable to get up and out of his
apartment for a full time job. As the claimant related, he
tends to argue with rather than connect with others in
person. On bad days, the claimant says that he spends all day
in bed, occasionally with suicidal thoughts. Physically, the
claimant testified ...