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Gypsy B. v. Commissioner of Social Security

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

December 6, 2019

GYPSY B., Plaintiff,




         Plaintiff seeks review of the denial of her applications for Supplemental Security Income and Disability Insurance Benefits. Plaintiff contends the administrative law judge (“ALJ”) erred by rejecting her testimony and her treating medical sources' opinions. (Dkt. #10 at 1.) As discussed below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for an award of benefits under sentence four of 42 U.S.C. § 405(g).


         Plaintiff was born in 1961, has at least a high school education, and has worked as a credit clerk, cashier checker, sales clerk, truck driver, flagger, and security supervisor. AR at 43-44, 30, 74-75. Plaintiff was last gainfully employed in August 2015. Id. at 45.

         On November 10, 2015, Plaintiff applied for benefits, alleging disability as of August 6, 2015. AR at 91. Plaintiff's applications were denied initially and on reconsideration, and Plaintiff requested a hearing. Id. at 89, 90, 139, 140, 168-69. After the ALJ conducted a hearing on October 12, 2017, the ALJ issued a decision finding Plaintiff not disabled. Id. at 39-88, 15-31.

         Utilizing the five-step disability evaluation process, [1] the ALJ found:

Step one: Plaintiff has not engaged in substantial gainful activity since the August 6, 2015, alleged onset date.
Step two: Plaintiff has the following severe impairments: fibromyalgia, headaches, degenerative changes of the cervical and lumbar spine, mild osteoarthritis of the hands, sleep apnea, and chronic obstructive pulmonary disease.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Plaintiff can lift/carry 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk 6 hours per day, and sit 6 hours per day. She must alternate sitting and standing briefly every hour. She can frequently handle, finger, and reach. She can frequently climb ramps and stairs, but never climb ladders, ropes, or scaffolds. She can frequently stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to extreme cold or heat, vibration, pulmonary irritants, and hazards.
Step four: Plaintiff can perform past relevant work as a credit clerk, and thus is not disabled.
Step five: The ALJ did not reach step five.

AR at 17-31.

         As the Appeals Council denied Plaintiff's request for review, the ALJ's decision is the Commissioner's final decision. AR at 1-3. Plaintiff appealed the final decision of the Commissioner to this Court. (Dkt. # 4.)


         Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a general principle, an ALJ's error may be deemed harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to determine whether the error alters the outcome of the case.” Id.

         “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 determining credibility, 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 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.


         There is no dispute that Plaintiff suffers from fibromyalgia. As the Ninth Circuit has recognized, fibromyalgia is “unusual, ” and difficult to analyze in Social Security disability cases, because objective clinical findings are typically normal and the “condition is diagnosed ‘entirely on the basis of the patients' reports of pain and other symptoms.'” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (quoting Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). Typical symptoms include chronic pain throughout the body. Id. There is also no dispute that Plaintiff suffers from hand osteoarthritis. The ALJ restricted Plaintiff to handling and fingering “frequently, ” i.e., up to two-thirds of the day. AR at 21.

         Plaintiff challenges the ALJ's rejection of her testimony and two medical opinions regarding her ability to use her hands. If Plaintiff were limited to less than frequent handling and fingering, vocational expert testimony established that Plaintiff would be unable to perform past relevant work as a credit clerk. AR at 79. The vocational expert further testified that no other jobs that existed in significant numbers in the national economy would be available. Id. at 80; se ...

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