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Cottam v. Colvin

United States District Court, E.D. Washington

January 3, 2014

ROBERT JOHN COTTAM, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Robert John Cottam, Plaintiff: David L Lybbert, LEAD ATTORNEY, Calbom & Schwab PSC, Moses Lake, WA.

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ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

VICTOR E. BIANCHINI, UNITED STATES MAGISTRATE JUDGE.

BEFORE THE COURT are cross-motions for summary judgment. ECF No.

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17, 20. Attorney David L. Lybbert represents Plaintiff Robert John Cottam. Assistant United States Attorney Pamela J. DeRusha represents the Commissioner of Social Security. The parties consented to proceed before a magistrate judge. ECF No. 4. After reviewing the administrative record and the briefs filed by the parties, the court grants Plaintiff's motion for summary judgment, ECF No. 17, denies the Commissioner's motion for summary judgment, ECF No. 20, and directs that this case be remanded for calculation of benefits.

JURISDICTION

Plaintiff applied for supplemental security income disability benefits (" SSI" ) and disability insurance benefits (" DIB" ) on December 14, 2007, alleging an onset date of February 23, 2005. (Tr. 158, 159-61).[1] The applications were denied initially and Plaintiff requested a hearing before an Administrative Law Judge (" ALJ" ).

ALJ Michael S. Hertzig held a hearing on October 13, 2009. (Tr. 51). Plaintiff, represented by counsel, appeared and testified. (Tr. 67-96). Dan McKinney, a vocational expert, also appeared and testified. (Tr. 97-103). On April 15, 2010, the ALJ issued a decision denying Plaintiff's applications for benefits. (Tr. 19-50). The Appeals Council denied Plaintiff's request for review on December 30, 2011 (Tr. 1-6), making the ALJ's decision the Commissioner's final decision.

Plaintiff timely commenced this action on January 23, 2012, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § § 405(g). ECF No. 6. The Commissioner interposed an Answer on April 11, 2012. ECF No. 13. Plaintiff filed a motion for summary judgment, with supporting memorandum of law, on August 8, 2012. ECF No. 17, 18. The Commissioner filed a summary judgment motion, with supporting memorandum of law, on September 19, 2012. ECF No. 20, 21. Plaintiff filed a reply memorandum of law on September 27, 2012. ECF No. 22. This case was assigned to the undersigned on December 23, 2013, by Order of the Honorable Rosanna Malouf Peterson, Chief United States District Judge. ECF No. 25.

STATEMENT OF FACTS

The facts have been presented in the administrative hearing transcript, the ALJ's decision, and the parties' briefs. They are only briefly summarized here and throughout this Order as necessary to explain this Court's decision.

Plaintiff was 48 years old on the alleged onset date and 53 at the time of the ALJ's decision (Tr. 44). He has a high school education and worked as a sheet rocker/drywall applicator for many years. (Tr. 43-44). He alleges disability due to the combined effect of physical conditions affecting his lower back and shoulders, as well as depression, paranoia, anxiety, and grief. ECF No. 18, at 5.

SEQUENTIAL EVALUATION PROCESS

The Social Security Act (" the Act" ) defines disability as the " inability to engage in any substantial gainful activity by reason of any medically determinable 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). The Act also provides that a plaintiff shall be determined to be under a disability only if any impairments are of

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such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial work which exists in the national economy. 42 U.S.C. § § 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § § 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medially severe impairment or combination of impairments. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

If plaintiff does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. § § 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work that plaintiff is deemed not disabled. 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff's residual functional capacity (RFC) is considered. If plaintiff cannot perform past relevant work, the fifth and final step in the process determines whether plaintiff is able to perform other work in the national economy in view of plaintiff's residual functional capacity, age, education and past work experience. 20 C.F.R. § § 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once plaintiff establishes that a mental or physical impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a " significant number of jobs exist in the national economy" that plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

STANDARD OF REVIEW

Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). " The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more

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than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). Substantial evidence " means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)(citations omitted). " [S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).

It is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

ALJ'S FINDINGS

The ALJ found at step one of the sequential evaluation that Plaintiff had not engaged in substantial gainful activity since February 23, 2005, and met the insured status requirements of the Social ...


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