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Kjeldgaard v. Colvin

United States District Court, E.D. Washington

March 28, 2014

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


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-motions for summary judgment. ECF Nos. 18, 22. Attorney Gary R. Penar represents Plaintiff; Special Assistant United States Attorney Jeffrey R. McClain represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 6. After reviewing the administrative record and the briefs filed by the parties, the court GRANTS Plaintiff's Motion for Summary Judgment and DENIES Defendant's Motion for Summary Judgment.


On June 25, 2009, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning December 2, 2008. Tr. 11; 149. Plaintiff reported that she could not work due to "right hip, lower back and nerve problems." Tr. 153. Plaintiff's claim was denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). Tr. 64-111. A hearing was held on November 5, 2010, at which vocational expert Daniel McKinney, Plaintiff's mother Julienne Grace Kelley, and Plaintiff, who was represented by counsel, testified. Tr. 38-60. ALJ James W. Sherry presided. Tr. 25. The ALJ denied benefits on January 6, 2011. Tr. 11-20. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).


The facts have been presented in the administrative hearing transcript, the ALJ's decision, and the briefs of the parties and, thus, they are only briefly summarized here. At the time of the hearing, Plaintiff was 33 years old, 5 foot 8 inches, about 190 pounds, and married with three children ages fifteen, nine and seven. Tr. 31-32.

Plaintiff dropped out of school after the tenth grade, and earned a GED. Tr. 32-33. Plaintiff's past work includes insurance sales agent, customer service clerk, administrative clerk, nurse's assistant, telephone solicitor and cashier. Tr. 57. Plaintiff left her last job due to her back pain. Tr. 34-35.

Plaintiff testified that 75% of her day is spent lying on a couch, elevating her feet and alternating heating and icing. Tr. 46. Plaintiff said she is unable to stand long enough to complete household chores such as cleaning, and she can briefly stand to put frozen meals into the oven. Tr. 47. When she shops, she uses electronic scooters. Tr. 48.


The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) . If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 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. 1988). If substantial evidence exists to support the administrative findings, or if conflicting evidence exists that will support a finding of either disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).


The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once a claimant establishes that a physical or mental impairment prevents him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in the national economy which claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an adjustment to other work in the national economy, a finding of "disabled" is made. 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v).


At step one of the sequential evaluation process, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 2, 2008, the alleged onset date. Tr. 13. At step two, the ALJ found Plaintiff suffered from the severe impairments of status post right hip arthroscopy and osteoplasty with chronic right hip pain, nerve impingement, and other associated symptoms, right trochanteric bursitis, status post multiple nerve neoplasties, and major depressive disorder. Tr. 13. At step three, the ALJ found Plaintiff's impairments, alone and in combination, did not meet or medically equal one of the listed impairments. Tr. 14. The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform a range of sedentary work:

The claimant cannot lift more than 10 pounds at a time. She can occasionally lift and carry articles such as docket files, ledgers, and small tools. She can stand and walk for about 2 hours in an 8-hour day and sot [sic] for about 6 hours in an 8-hour workday. She needs to be able to change position sit/stand every 30-60 minutes. The claimant is unlimited in pushing and pulling within the above weight restrictions. She can occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl. She requires a handheld assistive device at all times while standing. The claimant should avoid concentrated exposure to unprotected heights and moving machinery. She can understand and perform some well-learned simple, routine, and repetitive tasks. She can adapt to simple changes. The claimant is capable of basic interaction with co-workers and the general public.

Tr. 15.

Based upon this RFC, the ALJ found that Plaintiff is able to perform past relevant work as a telephone solicitor, customer service clerk with sit/stand option and cashier with sit/stand option. Tr. 19. The ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 19-20.


Plaintiff contends that the ALJ erred by (1) finding Plaintiff had little credibility; (2) rejecting Plaintiff's treating and examining medical providers; and (3) determining Plaintiff's RFC and therefore finding Plaintiff could perform past relevant work. ECF No. 19 at 16-30.


A. ...

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