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Barth v. Colvin

United States District Court, Ninth Circuit

December 31, 2013

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed ( see ECF Nos. 14, 18, 19).

Although plaintiff has back pain, plaintiff failed to carry her burden of proof to establish that she was disabled from any form of work. Although there was disagreement among medical experts regarding whether she was capable of light or sedentary work, none of her health care providers opined that she was not capable of some form of work. The ALJ cited to objective medical evidence that provided a clear and convincing reason for discounting plaintiff's testimony to the contrary. For these reasons, and others set forth below, the ALJ's finding of nondisability is affirmed.


Plaintiff, LORI L. BARTH, was born in 1957 and was 47 years old on the alleged date of disability onset of February 14, 2005 ( see Tr. 140-41). Plaintiff graduated from high school and received a Bachelor's degree in Journalism from the University of Washington (Tr. 42, 161). She has past relevant work experience as a computer typesetter keyliner, administrative clerk, and meeting planner; and also owned her own business making and selling t-shirts, and running a graphics store (Tr. 26, 46, 164). As plaintiff testified at her administrative hearing:

I typed up a book for a guy and it was - the graphics store, I typed up a book for a guy and then I realized that that would take me forever, so I scanned in the pages. I would help people design their own t-shirts and logos to put on, you know, like bar t-shirts and auto sales and.... it was a retail business.... [for] about a year. I never - it never really went off the ground. I never made any money it. I was not a very good business person, I don't think.

(Tr. 46).

Plaintiff has at least the severe impairment of "Lumbar Degeneration with arthritis (20 CFR 404.1520(c))" (Tr. 19).

At the time of the hearing, plaintiff was living in a house with her husband ( see Tr. 38-39, 50).


Plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act on January 20, 2010, alleging disability beginning February 14, 2005 (Tr. 17, 140-141). The application was denied initially and following reconsideration (Tr. 17, 78-80, 84-88). Plaintiff's requested hearing was held before Administrative Law Judge Mattie Harvin-Woode ("the ALJ") on August 2, 2011 ( see Tr. 17, 33-75). On August 31, 2011, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 14-32).

On September 14, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-6). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in November, 2012 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on February 19, 2013 ( see ECF Nos. 10, 11).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ afforded proper weight to the medical opinion evidence; (2) Whether or not the ALJ gave legally sufficient reasons for not crediting the lay witness statements; (3) Whether or not the ALJ gave legally sufficient reasons for finding plaintiff not fully credible; and (4) Whether or not these errors were harmful ( see ECF No. 14, pp. 1-2).


Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment "which can be expected to result in death or which has lasted, or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if 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 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "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.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ( citing Magallanes, supra, 881 F.2d at 750).

In addition, the Court must independently determine whether or not "the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (collecting cases)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) ( citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) ( citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) ("we may not uphold an agency's decision on a ground not actually relied on by the agency") ( citing Chenery Corp, supra, 332 U.S. at 196). In the context of social security appeals, legal ...

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