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Wambolt v. Colvin

United States District Court, E.D. Washington

March 28, 2014

ROBERT A. WAMBOLT, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-Motions for Summary Judgment. ECF Nos. 14, 21. Attorney David L. Lybbert represents Plaintiff; Special Assistant United States Attorney Courtney Garcia 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 Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.

JURISDICTION

On December 14, 2009, [1] Plaintiff filed a Title II application for a period of disability and disability insurance benefits, along with a Title XVI application for supplemental security income, both alleging disability beginning December 7, 2009. Tr. 14; 133. Plaintiff reported that he could not work due to problems with his low back and the veins in his right leg. Tr. 137. Plaintiff explained that he is in pain when sits, stands, walks and lifts objects. Tr. 137. Plaintiff's claim was denied initially and on reconsideration, and he requested a hearing before an administrative law judge (ALJ). Tr. 75-116. A hearing was held on October 18, 2011, at which medical expert Richard Allen Hutson, M.D., vocational expert K. Diane Kramer, and Plaintiff, who was represented by counsel, testified. Tr. 35-74. ALJ Marie Palachuk presided. Tr. 35. The ALJ denied benefits on December 7, 2011. Tr. 14-23. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).

STATEMENT OF FACTS

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 50 years old, divorced, and living in a house with his fiance. Tr. 44; 163. Plaintiff completed the ninth grade. Tr. 45.

Plaintiff testified he last worked as a certified nursing assistant, which required him to lift, change, shower and clean patients. Tr. 47. Plaintiff testified that he has also worked as a security officer, cashier and as a lawn care worker. Tr. 48-49.

Plaintiff testified that he cannot work due to severe pain in his back and shoulder. Tr. 53. He said his severe pain lasts "all day long, off and on." Tr. 54. He also testified that in 2010, he was diagnosed with Diabetes and he uses an inhaler for asthma. Tr. 58-59. Plaintiff prepares sandwiches and frozen meals, washes dishes, regularly shops for food and clothing, reads books, watches television and visits with friends. Tr. 163-67.

STANDARD OF REVIEW

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).

SEQUENTIAL PROCESS

The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 16.920(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).

ALJ'S FINDINGS

At step one of the sequential evaluation process, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 7, 2009. Tr. 16. At step two, the ALJ found Plaintiff suffered from the severe impairments of degenerative disk disease of the lumbar spine, right shoulder impingement with possible partial tear, diabetes and peripheral vascular disease, controlled. Tr. 16. 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. 17. The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform light work with a few limitations: he should not lift above shoulder height; he can occasionally balance, stoop, kneel, crouch, crawl, and climb; he should change sit/stand positions every hour for five minutes; and he should avoid concentrated exposure to vibrations, unprotected heights and moving machinery. Tr. 18.

At step four, the ALJ found that Plaintiff is able to perform past relevant work as a security guard, potato processor and cashier II. Tr. 22. The ALJ specified that Plaintiff should not perform cashier work in a mini-mart, because it would likely require more lifting than prescribed by Plaintiff's RFC. Tr. 22. Because Plaintiff could perform his past relevant work, the ALJ found that Plaintiff was not disabled. Tr. 23.

ISSUES

Plaintiff contends that the ALJ erred: (1) in his credibility determination; (2) in weighing the medical evidence; and (3) in his ...


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