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Shaun M. v. Commissioner of Social Security

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

October 28, 2019

SHAUN M., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING FOR ADDITIONAL PROCEEDINGS

          Theresa L. Fricke United States Magistrate Judge

         Plaintiff has brought this matter for judicial review of defendant's denial of his applications for disability insurance and supplemental security income benefits.

         The 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.

         I. ISSUES FOR REVEW

         1. Did the ALJ err in evaluating Plaintiff's symptom testimony?

         2. Did the ALJ properly evaluate the medical opinion evidence?

         3. Did the ALJ err in discounting lay witness evidence?

         II. BACKGROUND

         On June 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.

         Plaintiff 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.

         Plaintiff's 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.

         On 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.

         III. STANDARD OF REVIEW

         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.

         IV. DISCUSSION

         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 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).

         In this 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.

         Based 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.

         A. Whether the ALJ erred in evaluating Plaintiff's symptom testimony

         Plaintiff 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. AR 60.

         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.

         In 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).

         The ALJ 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 Cir.1999).

         However, 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).

         In 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 ...

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