Vodder v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 13, 2024
• Docket: 2:24-cv-00804
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KARI V., CASE NO. 2:24-CV-804-DWC 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.

15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 16 of her application for Disability Insurance Benefits (DIB). Pursuant to 28 U.S.C. § 636(c), Fed. 17 R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before the 18 undersigned. After considering the record, the Court concludes that this matter must be reversed 19 and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent 20 with this Order. 21 I. BACKGROUND 22 Plaintiff applied for DIB on November 18, 2018. Administrative Record (AR) 4. Her 23 alleged date of disability onset is March 25, 2017. Id. Her requested hearing was held before 24 1 Administrative Law Judge (ALJ) Richard Hlaudy in September 2020. AR 238–62. ALJ Hlaudy 2 issued a decision finding Plaintiff not disabled the next month (AR 72–92), which was reversed 3 by this Court pursuant to a stipulated remand order (AR 103–08). Plaintiff filed an additional 4 claim in May 2021, which was consolidated with her previous claim. See AR 130.

5 On remand, ALJ Howard Prinsloo (the ALJ) held another hearing on December 28, 2023. 6 AR 29–48. On April 4, 2024, the ALJ issued a written decision finding Plaintiff not disabled 7 between her alleged onset date and her 55th birthday in March 2020 (the relevant period). AR 1– 8 28. Plaintiff failed to file exceptions with the Appeals Council, making the ALJ’s decision 9 Commissioner’s final decision subject to judicial review. See 20 C.F.R. § 404.984(a). On June 10 12, 2024, Plaintiff filed a Complaint in this Court seeking judicial review of the ALJ’s decision. 11 Dkt. 6. 12 II. STANDARD 13 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 14 benefits if, and only if, the ALJ’s findings are based on legal error or not supported by

15 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 16 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 17 III. DISCUSSION 18 In her opening brief, Plaintiff argues the ALJ erred in considering her subjective 19 testimony and in failing to include a sit-stand-at-will limitation in the Residual Functional 20 Capacity (RFC) assessment. Dkt. 10. 21 A. Subjective Symptom Testimony 22 Plaintiff alleged, due to pain from her degenerative disc disease and hidradenitis 23 suppurativa, she could stand for about 20 minutes at a time and walk about half a block, required

24 1 time to lie down to take pressure off her back, and had difficulties lifting more than ten pounds. 2 See AR 250–53, 553–58. 3 The ALJ was required to “offer[] specific, clear, and convincing reasons” for discounting 4 Plaintiff’s testimony. Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). Defendant

5 argues the ALJ did so by pointing to (1) the objective medical evidence, (2) improvement in 6 Plaintiff’s symptoms, (3) Plaintiff’s activities of daily living, and (4) evidence that Plaintiff 7 worked during the relevant period. Dkt. 14 at 3–8. The Court finds these were not adequate 8 reasons supported by substantial evidence. 9 Objective Medical Evidence. The ALJ stated that Plaintiff’s testimony was “not entirely 10 consistent with the medical evidence,” summarized the medical evidence, and then stated the 11 medical evidence did not support limitations beyond those in the RFC. See AR 10–15. This is 12 inadequate to meet the standard for rejecting subjective symptom testimony. See Brown-Hunter 13 v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“[The ALJ] simply stated her non-credibility 14 conclusion and then summarized the medical evidence supporting her RFC determination. This

15 is not the sort of explanation or the kind of ‘specific reasons’ we must have in order to review the 16 ALJ's decision meaningfully, so that we may ensure that the claimant's testimony was not 17 arbitrarily discredited.”); Ferguson v. O’Malley, 95 F.4th 1194, 1200 (9th Cir. 2024) (“[T]o 18 satisfy the substantial evidence standard, the ALJ must . . . explain why the medical evidence 19 is inconsistent with the claimant's subjective symptom testimony.”) (emphasis in original). 20 The evidence Defendant contends was inconsistent with Plaintiff’s subjective testimony 21 was not necessarily inconsistent with Plaintiff’s testimony and, without further explanation, was 22 insufficient to reject Plaintiff’s testimony. 23

24 1 The ALJ discussed notations of “no acute distress” (AR 11), but such notations show 2 Plaintiff did not have new, emerging conditions when seeking treatment, not that Plaintiff was 3 unaffected by her ongoing, chronic conditions. See Richard F. v. Comm'r of Soc. Sec., 2019 WL 4 6713375, at *7 (W.D. Wash. Dec. 10, 2019) (“‘Acute’ means ‘of recent or sudden onset;

5 contrasted with chronic.’ Oxford English Dictionary, acute (3d ed. Dec. 2011). Plaintiff's 6 impairments are chronic, not acute.”). 7 The ALJ discussed some normal examination findings, and noted that, at times, Plaintiff 8 presented with normal or “mildly antalgic” gait, sensation, strength, and hip range of motion. See 9 AR 11–12. Such findings are not clearly probative as to the duration for which Plaintiff is 10 capable of walking and standing. See, e.g., Angela M. C. v. Comm’r of Soc. Sec., 2024 WL 11 1367635, at *3 (W.D. Wash. Apr. 1, 2024) (“The finding Plaintiff has normal gait is not 12 necessarily probative of how far Plaintiff can walk.”); Jeffrey M. H. v. Comm’r of Soc. Sec., 2024 13 WL 4986720, at *2 (W.D. Wash. Dec. 5, 2024) (strength testing “goes to weakness, not 14 endurance”). Moreover, the ALJ erred by acknowledging Plaintiff had some abnormalities in

15 these areas (see AR 11–13) but failing to explain why those abnormalities were either 16 inconsistent with Plaintiff’s testimony or less probative than the normal findings. See Brown- 17 Hunter, 806 F.3d at 492 (ALJ must “set forth the reasoning behind [his] decision[] in a way that 18 allows for meaningful review”). 19 Improvement in Symptoms. The ALJ noted that, at times, Plaintiff reported improvement 20 from some medication and reported relief for several hours from an injection. See AR 11, 12. 21 Without further explanation, such findings are insufficient to conclude Plaintiff’s condition 22 improved such that it was no longer as impairing as alleged. See Holohan v. Massanari, 246 F.3d 23

24 1 1195, 1205 (9th Cir. 2001) (“[S]ome improvement” in a person’s symptoms “does not mean that 2 the person’s impairments no longer seriously affect her ability to function in a workplace.”). 3 Activities of Daily Living. Defendant contends the ALJ rejected Plaintiff’s allegations 4 because she “admitted to daily pool activity, walking in the water for an hour at a time, as well as

5 a home-exercise program.” Dkt. 14 at 6. Plaintiff walked slowly in the water for one hour each 6 day and stretched at home. See AR 1011, 1015. The ALJ did not explain, nor can the Court 7 discern, how such activities were inconsistent with Plaintiff’s testimony. Plaintiff’s stretching 8 does not involve walking or standing for prolonged periods or lifting weights. Her ability to walk 9 in a pool says little of her ability to walk ashore for extended periods without back pain. See 10 Aquatic Exercises, Mayo Clinic (June 2023) (noting aquatic exercises like water walking “take[] 11 the pressure off the bones, joints and muscles”). 12 Work. The ALJ noted Plaintiff worked part-time taking orders for a florist from home; 13 worked for two days as a part-time cashier; and indicated she wanted to be retrained for light 14 work. See AR 14, 247. Her part-time work is not necessarily inconsistent with her seeking

15 benefits or her testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 16 Cir. 2008) (“[T]he record here does not establish whether Carmickle held himself out as 17 available for full-time or part-time work. Only the former is inconsistent with his disability 18 allegations.”); Lingenfelter v. Astrue, 504 F.3d 1028, 1039–40 (9th Cir. 2007) (finding nine-week 19 work attempt not a valid reason for discounting Plaintiff’s symptom testimony). Although the 20 ALJ noted cashier positions are generally light work, this does not mean Plaintiff performed the 21 functions she testified she was unable to perform. Wishing to be retrained for “less physically 22 demanding” work (AR 925) does not mean Plaintiff thought herself able to perform that work. 23

24 1 In sum, the ALJ failed to give specific, clear, and convincing reasons for discounting 2 Plaintiff’s subjective symptom testimony. Defendant does not dispute that such an error requires 3 reversal, and, thus, the Court reverses. See Dkt. 14; Ferguson, 95 F.4th at 1204 (“The 4 Commissioner does not contend that the ALJ's error was harmless. Consequently, we reverse the

5 judgment . . . .”). 6 B. Remaining Issues 7 The Court need not consider Plaintiff’s contention that the ALJ erred in failing to include 8 a sit-stand-at-will limitation in the RFC. Rather, the Court directs the ALJ to reassess Plaintiff’s 9 testimony and the medical evidence on remand and, if appropriate, reformulate the RFC and 10 reassess his steps four and five findings. Plaintiff contends the case should be remanded for an 11 award of benefits, but there remain ambiguities about whether, if credited, Plaintiff’s testimony 12 would lead to a finding that she is disabled, precluding such a remedy. See Garrison, 759 F.3d at 13 1020. 14 IV. CONCLUSION

15 For the foregoing reasons, the Court REVERSES and REMANDS the decision pursuant 16 to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this 17 Order. 18 Dated this 13th day of December, 2024. 19 A 20 David W. Christel United States Magistrate Judge 21 22 23 24