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Brandi H. v. Commissioner of Social Security

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

January 16, 2020

BRANDI H., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING THE COMMISSIONER'S DECISION AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff appeals the denial of her application for benefits, contending the ALJ erred by rejecting her testimony, a lay witness statement, and two medical sources' opinions. Dkt. 8. As discussed below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         THE ALJ'S DECISION

         The ALJ found Plaintiff had the severe impairments of obesity, and mental health disorders of depression, anxiety, post-traumatic stress, and methamphetamine use (in remission). Dkt. 6, Admin. Record (Tr.) 18. The ALJ found Plaintiff was able to perform medium work, limited to simple, routine, repetitive tasks and simple work-related decisions. Tr. 21. Although Plaintiff had no past relevant work, the ALJ concluded she could perform jobs that existed in significant numbers in the national economy and thus was not disabled. Tr. 25-26.

         DISCUSSION

         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).

         A. Plaintiff's Testimony

         At a June 2018 hearing, Plaintiff testified she can stand or walk for 15 minutes and then must sit for 15 minutes. Tr. 50-51. Although walking is painful, she must walk to avoid stiffness. Tr. 49-50. Plaintiff must prop her feet and ankles up above her head twice a day for 30 to 45 minutes. Tr. 55. She can lift 7 pounds. Tr. 57. Plaintiff testified she lacks enough focus to read a book or watch a movie. Tr. 57. She avoids places with a lot of people. Tr. 58. Plaintiff has difficulty around crowds, but also has difficulty being alone without a familiar person. Tr. 48-49. She has panic attacks every month or two that usually last 15 to 20 minutes. Tr. 59, 48.

         The ALJ could only discount Plaintiff's testimony for “specific, clear, and convincing” reasons supported by substantial evidence. Trevizo, 871 F.3d at 678. The ALJ discounted Plaintiff's testimony as inconsistent with her poor work history, lack of supporting objective evidence, daily activities, and improvement with medication. Tr. 22-23.

         1. Work History

         In a disability report, Plaintiff stated she stopped working in 2008 due to her conditions. Tr. 301. The ALJ found Plaintiff had a poor work history even before 2008 as well as a history of drug abuse, and concluded her poor work history was related to substance use. Tr. 22. This work history has very little relevance to evaluating Plaintiff's testimony, however. The ALJ accepted Plaintiff's testimony she has not used drugs since her May 2016 alleged onset date. See Tr. 21. Whether drug use affected her work history before 2008 has little bearing on the reliability of her 2018 hearing testimony. Work history was not a clear and convincing reason to discount Plaintiff's testimony.

         2. Objective Evidence

         Lack of supporting objective evidence cannot, by itself, constitute clear and convincing reason to discount a claimant's testimony. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). “Contradiction with the medical record is a sufficient basis for rejecting a claimant's subjective testimony, ” however. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Regarding physical impairments, the ALJ cited only a lack of clinical observations of pain behavior, atrophy, or difficulty moving, but identified no contradictory medical evidence. Regarding mental impairments, an examining psychologist found Plaintiff had normal concentration. Tr 380, 554. This is reason to discount testimony of impaired concentration, but not other testimony. See Social Security Ruling 16-3p, 2017 WL 5180304 at *8 (S.S.A. 2017) (ALJ must explain “which of an individual's symptoms” was inconsistent with evidence (emphasis added)). It does not contradict testimony of avoiding crowds, for example.

         3. ...


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