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Landry v. Colvin

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

February 28, 2014

AMBER E. LANDRY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MARY ALICE THEILER, Chief Magistrate Judge.

Plaintiff Amber E. Landry proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda, the Court recommends this matter be REMANDED for further administrative proceedings.


Plaintiff was born on XXXX, 1966.[1] She has a two-year college degree and previously worked as a dancer, general house worker, and pharmacy technician. (AR 30, 41, 146.)

With a filing month of October 2009, plaintiff filed an application for DIB, alleging disability since December 30, 2007. (AR 177-82.) Plaintiff remained insured for DIB through June 30, 2009 and, therefore, was required to establish disability on or prior to that "date last insured" (DLI). See 20 C.F.R. §§ 404.131, 404.321. Her application was denied initially and on reconsideration, and she timely requested a hearing.

ALJ Verrell Dethloff held a hearing on December 6, 2011, taking testimony from plaintiff. (AR 38-60.) On December 23, 2011, the ALJ rendered a decision finding plaintiff not disabled. (AR 14-32.) Plaintiff timely appealed.

The Appeals Council denied plaintiff's request for review on June 21, 2013 (AR 1-3), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.


The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).


The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since December 30, 2007, the alleged onset date, through her DLI. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's reflex sympathetic dystrophy and degenerative disc disease of the cervical spine with myofascial pain syndrome severe. He found other physical impairments not severe and found no medically determinable mental impairment prior to the DLI beyond plaintiff's history of heroin abuse, in remission since 2002. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff had the RFC to perform essentially a full range of unskilled light work, including the ability to lift twenty pounds occasionally and ten pounds frequently, and to sit and stand and/or walk for about six hours in an eight-hour workday. The ALJ further found plaintiff could frequently push and/or pull with her upper extremities, could occasionally reach overhead with her upper extremities, could never climb ladders, ropes, or scaffolds, could occasionally stoop and crawl, could frequently climb ramps and stairs, balance, kneel, and crouch, and had to avoid concentrated exposure to extreme cold, vibrations, and hazards such as dangerous machinery and unprotected heights. With this RFC, the ALJ found plaintiff unable to perform any past relevant work.

If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. Applying the Medical-Vocational Guidelines, and considering both light and sedentary work, the ALJ concluded there were jobs existing in significant numbers in the national economy plaintiff could perform. The ALJ, therefore, concluded plaintiff was not disabled at any time from the alleged onset date through her DLI.

This Court's review of the final decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means 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). If there is more than one rational interpretation, one of which supports the final decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

Plaintiff argues the ALJ erred in failing to obtain vocational expert testimony at step five, in finding no medically determinable mental impairment prior to the DLI, and in assessing her credibility and a lay witness statement. She requests remand for further administrative proceedings. The Commissioner maintains the ALJ's decision has the support of substantial evidence and should be affirmed.

Step Five

The Medical-Vocational Guidelines or "grids" present a short-hand method for determining the availability and numbers of suitable jobs for claimants, addressing factors relevant to a claimant's ability to work, such as age, education, and work experience. See 20 C.F.R. Pt. 404, Subpt. P, App 2. Their purpose is to streamline the administrative process and encourage uniform treatment of claims. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).

An ALJ may rely on the grids to meet his burden at step five. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). "They may be used, however, only when the grids accurately and completely describe the claimant's abilities and limitations.'" Id. (quoting Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985)). When the grids do not adequately account for all of a claimant's abilities and limitations, the ALJ must consult a vocational expert (VE). Thomas, 278 F.3d at 960 (the ALJ "fulfills his obligation to determine the claimant's occupational base by consulting a [VE] regarding ...

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