Yong v. Commissioner of Social Security

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 VON Y., CASE NO. 3:23-CV-5226-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 his applications for Supplemental Security Income (SSI) benefits and Disability Insurance 17 Benefits (DIB). Pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13, the 18 parties have consented to proceed before the undersigned. After considering the record, the Court 19 concludes that this matter must be reversed and remanded pursuant to sentence four of 42 U.S.C. 20 § 405(g) for further administrative proceedings consistent with this Order. 21 I. BACKGROUND 22 Plaintiff applied for SSI and DIB on January 23, 2017, alleging disability since May 15, 23 2016. AR 540. In January 2019, ALJ Allen Erickson held a hearing at which Plaintiff was 24 1 represented and testified. AR 65–113. ALJ Erickson issued a decision finding Plaintiff not 2 disabled in February 2019. AR 13–30. This Court reversed that decision in May 2021. AR 628– 3 41. On remand, ALJ David Johnson held a hearing on November 6, 2023. AR 571–87. On 4 November 23, 2023, he issued a decision finding Plaintiff not disabled between her alleged onset

5 date and her fifty-fifth birthday in March 2020. AR 537–70. Plaintiff did not file exceptions with 6 the Appeals Council, making the ALJ’s decision the final decision of the Commissioner subject 7 to judicial review. See 20 C.F.R. §§ 404.984(a), 416.1484(a). Plaintiff filed a Complaint in this 8 Court on April 11, 2024. Dkt. 7. 9 II. STANDARD 10 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 11 social security benefits if the ALJ’s findings are based on legal error or not supported by 12 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 13 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 14 III. DISCUSSION

15 A. Plaintiff’s Subjective Symptom Testimony 16 Plaintiff challenges the ALJ’s assessment of her subjective symptom testimony. See Dkt. 17 15 at 10–15. Plaintiff testified that a forklift accident caused painful bruising throughout her 18 chest and leg (AR 89–90) and that, after another injury she experienced in 2018, she had 19 significant difficulties standing up and putting weight on her left leg (AR 91, 577). She 20 experiences pain every day (AR 91), including pain in her neck, legs, and back several days per 21 week (AR 578). She testified she has blurry vision when looking afar (AR 102–03). She also 22 testified she cannot read or write English and had difficulties speaking and understanding it (AR 23 73, 82).

24 1 The ALJ was required to give “specific, clear, and convincing reasons” for rejecting 2 Plaintiff’s testimony about the severity of her symptoms.1 Garrison v. Colvin, 759 F.3d 995, 3 1014–19 (9th Cir. 2014) (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). In so 4 doing, “[t]he ALJ must state specifically which symptom testimony is not credible and which

5 facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284. 6 Defendant argues the ALJ met this standard by considering (1) the objective medical 7 evidence, (2) Plaintiff’s treatment history, (3) Plaintiff’s activities of daily living, and (4) several 8 inconsistent statements in the record. See Dkt. 17 at 3–8. The Court finds the ALJ did not 9 provide specific, clear, and convincing reasons supported by substantial evidence. 10 First, Defendant argues the ALJ adequately discounted Plaintiff’s testimony based on 11 inconsistencies with the medical evidence. Dkt. 17 at 8–9. For the most part, however, the ALJ 12 simply summarized the objective medical evidence and asserted it was inconsistent with 13 Plaintiff’s testimony. See AR 547–51. The ALJ therefore erred by failing to: 14 [S]pecifically identify any such inconsistencies; [he] simply stated [his] non- credibility conclusion and then summarized the medical evidence supporting [his] 15 RFC determination. This is not the sort of explanation or the kind of “specific reasons” we must have in order to review the ALJ’s decision meaningfully, so that 16 we may ensure that the claimant’s testimony was not arbitrarily discredited.

17 Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015); see also Burrell v. Colvin, 775 F.3d 18 1133, 1138 (9th Cir. 2014) (“Our decisions make clear that we may not take a general finding . . . 19 20 1 This standard applies where there is no evidence of malingering and the ALJ has found Plaintiff has presented evidence of a combination of medically determinable impairments that could reasonably be expected to produce the 21 alleged symptoms. Garrison, 759 F.3d at 1014–19 (citing Smolen, 80 F.3d at 1281). Defendant does not contend there is evidence of malingering that would justify the application of a different standard. See Dkt. 17 at 3. The ALJ 22 found that Plaintiff’s “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms.” AR 547. To the extent the ALJ intended to find that some of the alleged symptoms were not 23 reasonably expected to be caused by Plaintiff’s impairments, he must have made specific findings with respect to those symptoms and “set forth the reasoning behind [his] decision[] in a way that allows for meaningful review.” 24 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 1 and comb the administrative record to find specific conflicts.”). 2 However, the ALJ did adequately explain why Plaintiff’s testimony about her visual 3 difficulties was inconsistent with the medical evidence. The ALJ summarized the Plaintiff’s 4 history of visual tests, finding Plaintiff’s vision was mostly normal with correction, except for a

5 single test showing abnormally poor vision, which the examining doctor said was inexplicably 6 worse than a vision test administered two weeks prior and “indicated that he was mildly 7 suspicious of malingering.” AR 551. The ALJ reasonably concluded from this evidence that “the 8 claimant’s vision complaints were not as severe as alleged.” Id. But this was not a specific reason 9 for discounting the other subjective complaints proffered by Plaintiff. See Smolen, 80 F.3d at 10 1284. 11 Second, Defendant argues the ALJ found Plaintiff’s lack of treatment undermined her 12 complaints and that her musculoskeletal complaints improved with treatment. Dkt. 17 at 5–6. 13 The ALJ noted Plaintiff did not pursue treatment for her conditions until eight months after the 14 alleged onset date and failed to consistently discuss her worsening vision with providers. See AR

15 547, 551–52. However, the ALJ failed to inquire about potential reasons Plaintiff had for failing 16 to seek such treatment, as he must do before discounting her complaints on this basis. See Social 17 Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017) (“We will not find an 18 individual’s symptoms inconsistent with the evidence in the record on [the basis of failing to 19 seek treatment] without considering possible reasons he or she may not comply with treatment or 20 seek treatment consistent with the degree of his or her complaints.”); Eitner v. Saul, 835 Fed. 21 App’x 932, 933 (9th Cir. 2021) (unpublished) (finding the ALJ failed to consider possible 22 reasons a claimant failed to seek treatment where “the ALJ asked Claimant whether he had 23 received any specific treatment for the condition, but the inquiry ended there”); William B. v.

24 1 Comm’r of Soc. Sec., No. 3:23-cv-5684-TLF, 2024 WL 2076837 at *5 (W.D. Wash. May 7, 2 2024) (“SSR 16-3p requires the ALJ to inquire about whether an explanation exists for a lack of 3 treatment before discounting a claimant’s testimony on that basis[.]”). 4 The ALJ also noted that “the claimant experienced a good reduction in her pain” after

5 some treatment measures (AR 543) and that “injections improved her [knee] symptoms 6 significantly, but the knee pain was not entirely relieved” (AR 555). However, “some 7 improvement” in a person’s symptoms “does not mean that the person’s impairments no longer 8 seriously affect her ability to function in a workplace.” Holohan v. Massanari, 246 F.3d 1195, 9 1205 (9th Cir. 2001). 10 Third, the ALJ found Plaintiff “reported engaging in activities that are consistent with the 11 ability to perform light work,” like caring for her grandchildren, cleaning, cooking, shopping, 12 and walking up to a mile. AR 552. These activities may be “consistent” with the RFC, but that 13 alone is not enough to discount Plaintiff’s subjective testimony—the ALJ must explain how the 14 activities are inconsistent with Plaintiff’s allegations. See Burrell, 775 F.3d at 1138. The ALJ did

15 not explain, nor can the Court discern, how the activities identified were inconsistent with 16 Plaintiff’s testimony. Additionally, Plaintiff testified she often performed many of her activities 17 of daily living with the help of a friend (AR 101–02) and the ALJ failed to acknowledge this 18 evidence, undermining his conclusion that these activities were consistent with the ability to 19 perform light work. 20 Finally, Defendant points to a few inconsistent statements that purportedly undermined 21 Plaintiff’s reliability. See Dkt. 17 at 3–4. Defendant points to inconsistencies in her reported 22 visual problems (id.), but the Court cannot discern nor did the ALJ explain how such 23 inconsistencies specifically undermined Plaintiff’s non-visual complaints. See Smolen, 80 F.3d at

24 1 1284. Defendant contends there was an inconsistency between Plaintiff’s work as a card dealer at 2 a casino and her testimony that she cannot speak or understand English well. See Dkt. 17 at 4. 3 The ALJ did not rely upon such an inconsistency in discounting Plaintiff’s testimony. See 4 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“[W]e are constrained to review the

5 reasons the ALJ asserts.”). Even so, Plaintiff testified she had to speak “basic English” while 6 working as a card dealer (AR 80–81), but there is no indication this required extensive speaking 7 or understanding. 8 The ALJ also pointed out that Plaintiff made inconsistent statements on two function 9 reports about her ability to manage money. AR 552 (citing AR 312, 338). An ALJ can consider 10 “prior inconsistent statements” in rejecting a claimant’s testimony. Smolen, 80 F.3d at 1284. But 11 a single inconsistent statement on a matter not relevant to a claimant’s subjective testimony is 12 not by itself sufficient to support the ALJ’s decision. See Schow v. Astrue, 272 F. App’x 647, 13 652–53 (9th Cir. 2008) (unpublished) (unreported earnings were “proper for consideration, but 14 hardly compel[led] the adverse credibility finding” by themselves).

15 In sum, the ALJ failed to give specific, clear, and convincing reasons for discounting 16 some of Plaintiff’s testimony. Defendant does not dispute that such an error requires reversal; 17 accordingly, the Court reverses. See Dkt. 17; Ferguson v. O’Malley, 95 F.4th 1194, 1204 (9th 18 Cir. 2024) (“The Commissioner does not contend that the ALJ’s error was harmless. 19 Consequently, we reverse the judgment . . . .”). 20 B. Remaining Issues 21 Plaintiff also challenges the ALJ’s assessment of several medical opinions and lay 22 witness statements, as well as the RFC formulation and his finding that Plaintiff’s past relevant 23 work was substantial gainful activity. See Dkt. 15. Because the Court has concluded this matter

24 1 must be reversed, the Court declines to consider these arguments and, instead, directs that the 2 ALJ reassess the medical evidence on remand and, if appropriate, reassess the RFC and his step 3 four and five findings. 4 Plaintiff contends the case should be remanded for an award of benefits. However, given

5 that her testimony suggests her conditions worsened after an accident she had in 2018 (see AR 6 577), there remain ambiguities about the proper onset date which preclude such a remedy. See 7 Dominguez v. Colvin, 808 F.3d 403, 409–10 (9th Cir. 2015), as amended (Feb. 5, 2016) (“In 8 light of the inconsistencies, conflicts, and gaps in the record that require further administrative 9 proceedings, we do not proceed to the next question, whether the ALJ would be required to find 10 Dominguez disabled if Dr. Bhakta’s inconsistent reports were credited as true.”). 11 IV. CONCLUSION 12 For the foregoing reasons, the Court REVERSES and REMANDS the decision pursuant 13 to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this 14 Order.

15 Dated this 28th day of October, 2024. 16 A 17 David W. Christel United States Magistrate Judge 18 19 20 21 22 23 24