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Hubley v. Colvin

United States District Court, E.D. Washington

March 20, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JUSTIN L. QUACKENBUSH, Senior District Judge.

Plaintiff appeals from the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his application for Supplemental Security Income (SSI) benefits after a hearing before an Administrative Law Judge ("ALJ"). This case, filed on May 24, 2013, was reassigned to the undersigned on February 6, 2014. (ECF No. 18).

Before the court are Cross-Motions for Summary Judgment. (ECF Nos. 15, 16). Plaintiff is represented by attorney Lora Lee Stover. Defendant is represented by Assistant United States Attorney Pamela DeRusha and Special Assistant United States Attorney Thomas Elsberry. Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).


Plaintiff has been pursuing Supplemental Security Income (SSI) benefits for the past six years. His two previous applications were denied. Plaintiff did not appeal the determination denying his first application filed on July 10, 2008. On April 7, 2009, he filed a second application for SSI benefits alleging disability due to a broken right hand, deformed right hip, right knee, and right pelvis. This second application was denied on July 29, 2010 after hearing by administrative law judge (ALJ) R. J. Payne. ALJ Payne determined the Plaintiff had the capacity to perform sedentary work with limitations despite the following severe impairments: a history of fracture injuries to the right hand, Blount's disease, a right knee torn lateral meniscus status post repair, obesity, and diminished internal rotation of the right hip. Through Ms. Stover, his present attorney, Plaintiff sought review of that decision in this court. E.D.WA Cause No. CV-11-0299-CI. In an opinion by Magistrate Judge Cynthia Imbrogno, hearing the matter by consent of the parties, the Commissioner's decision was affirmed. See Hubley v. Colvin, 2013 WL 1703365 (E.D.Wash., April 18, 2013).

On September 15, 2010, less than two months after ALJ Payne's decision denying his second application, Plaintiff filed a new application for SSI benefits alleging disability beginning December 31, 2001 (later amended to July 30, 2010). (Tr. 169-179). Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an ALJ. On March 12, 2013 an administrative hearing was held before ALJ Marie Palachuk. Testifying at the hearing were Richard A. Hutson, M.D., a medical expert and orthopedic surgeon; Scott Whitmer, a vocational expert; and Plaintiff. On March 28, 2012 the ALJ issued an order finding Plaintiff not disabled since September 15, 2010, the date of his current application. (Tr. 36). Plaintiff requested review of the ALJ's decision. (Tr. 19-20). The Appeals Council denied his request for review on March 27, 2013 (Tr. 1-7), making the ALJ's ruling the "final decision" of the Commissioner as the term is defined by 42 U.S.C. § 405(g). Plaintiff commenced this action on May 29, 2013 seeking judicial review of the Commissioner's final decision. (ECF No. 5).


The facts are contained in the medical records, administrative transcript (ECF No. 12)("Tr."), and the ALJ's decision, and are only briefly summarized here.

A. Plaintiff's History

Plaintiff was born in 1981 and was 30 years old at the time of the ALJ's hearing. He testified he is married and has nine children who reside in the household. (Tr. 203). Plaintiff completed the tenth grade, but dropped out during 11th grade to look for work to support his family. (Tr. 73). He has attended classes to complete his GED, but has yet to complete it. He is left handed.

Plaintiff has a limited work history with jobs of short duration including a fast food worker and construction worker. He has earned over $1, 000/year in just two jobs: a laundry laborer at Superior Linen in 2000 and a book sorter at a library in 2001. At Superior Linen he lifted carpets onto and operated a "carpet roller machine." (Tr. 74). He was injured on the job when his right hand was trapped in the machine. Id. In 2001, he left the book sorting position through the Tacoma-Pierce County Employment and Training Consortium to move to Spokane. (Tr. 76). Plaintiff has not worked steadily since moving to Spokane.

Plaintiff claims his ability to work is limited by worsening pain secondary to his impairments impacting his feet, calves, knees, pelvis, hips, low back, and his non-dominant, right hand.

B. Medical Evidence

The medical record includes treatment notes and records reviewed previously pursuant to Plaintiff's prior disability applications. Plaintiff's medical history is thoroughly discussed in ALJ Payne's 2010 decision and ALJ Palachuk's decision in this case. ALJ Payne's decision discusses that Plaintiff was diagnosed with Blount's Disease, an unusual bone disorder which causes the lower leg to turn inward ("intoeing"), at age 3 or 4 at Madigan Army Medical Center (Tr. 204). Plaintiff wears valgus unloading knee braces. (Tr. 419). Dr. Hutson testified at the administrative hearing that at 5 feet 9 inches in height and approximately 240 pounds, Plaintiff is considered obese. (Tr. 58).

Plaintiff was seen for his general health care needs at Group Health and Spokane Falls Family Clinic. In 2009 and again in 2011, Plaintiff underwent surgery on his right knee. (Tr. 254; 514-515, Operative Report of Miguel Schmitz, M.D.). The record also includes clinical records from Spokane Occupational & Hand Therapy, Summit Rehabilitation Associates, Northwest Orthopaedic Specialist, Schindler's Orthotic and Prosthetic Services, Providence Orthopedic Specialties, Star Physical Therapy and Rehabilitation, Alpine Orthopedic and Spine, and Houk Chiropractic Clinic. Plaintiff sought emergency room treatment at Deaconess Medical Center on 12/16/09 (pain), 1/8/2010 (pain), and 5/10/2011 (bleeding post knee surgery).

A consultative psychological evaluation was conducted on December 7, 2010 by Joyce Everhart, Ph.D. (Tr. 284-289). A consultative physical examination was performed by A. Peter Weir, M.D. on December 16, 2010 (Tr. 291-296).

The record also contains the reviews of non-examining state agency medical professionals, Jerry Gardner, Ph.D. (January 7, 2011, Tr. 305-317), Patricia Kraft, Ph.D. (March 8, 2011, Tr. 345), and Alfred Scottolini, M.D. (Tr. 346).

C. Commissioner's Findings

The ALJ found at Step 1 that Plaintiff had not engaged in substantial gainful activity since September 15, 2010, the date of Plaintiff's ...

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