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Schofiled v. Colvin

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

April 2, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed ( see ECF Nos. 14, 18, 19).

After considering and reviewing the record, the Court finds that the ALJ provided clear and convincing reasons for failing to credit fully plaintiff's testimony, and provided specific and legitimate reasons for crediting medical opinions from non-examining doctors over the opinions of examining and treating sources. The ALJ included a thorough discussion of the relevant medical evidence and noted inconsistencies in plaintiff's reports, as well as his behavior, as noted by medical sources. For instance, even though plaintiff claims to have passed out 20 times, the ALJ's conclusion that there was only one isolated incident documented in the medical records led the ALJ properly to conclude that this was not a limitation on plaintiff's ability to work.

Therefore, this matter shall be affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


Plaintiff, ROBERT W. SCHOFIELD, was born in 1961 and was 49 years old on the alleged date of disability onset of July 27, 2009 ( see Tr. 249, 255). Plaintiff completed high school and 2 years of college (Tr. 85). Plaintiff has worked as a parts driver, janitor, security guard and woodworker apprentice (Tr. 101). Plaintiff was last employed as a security guard and has not worked since he passed out on the job (Tr. 86).

Plaintiff has at least the severe impairments of "lumbosacral disc abnormalities with radiculopathy and nerve impingement, vertigo, pain syndrome, cervical spondylosis, emphysema, and syncopal episodes (20 CFR 404.1520(c) and 416.920(c))" (Tr. 29).

At the time of the hearing, plaintiff was living alone in a motor home on the property of a friend (Tr. 93, 97).


On September 10, 2009, plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act ( see Tr. 249-254, 255-58). The applications were denied initially and following reconsideration (Tr. 117-42, 143-169). Plaintiff's requested hearing was held before Administrative Law Judge David Johnson ("the ALJ") on March 27, 2012 ( see Tr. 79-116). On April 4, 2012, the ALJ issued a written decision in which he concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 24-48).

On March 2, 2013, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-4). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in March 2013 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on July 2, 2013 ( see ECF Nos. 10, 11, 12).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Did the ALJ err in the RFC determination by failing to consider properly the limitations caused both by conditions found severe by the ALJ, as well as the limitations caused by conditions that have a functional impact even if not deemed severe, and by failing to consider properly the opinions by treating sources (2) Did the ALJ err by failing to consider the impact of chronic pain on plaintiff's ability to function; and, (3) Did the ALJ err by failing to include all relevant functional limitation in the hypothetical question asked by the ALJ on which the steps 4 and 5 findings were made ( see ECF No. 14, p. 1).


Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a 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). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is 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) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ( citing Magallanes, supra, 881 F.2d at 750).

In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d at 1117-1122; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009).


1. Did the ALJ err in the RFC determination by failing to consider properly the opinions by treating sources?

a. Dr. Thomas Siler, M.D., treating physician.

The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ( citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Determining whether or not inconsistencies in the medical evidence "are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount" the opinions of medical experts "falls within this responsibility." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999)). If the medical evidence in the record is not conclusive, sole responsibility for resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) ( quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971) ( citing Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980))).

It is not the job of the court to reweigh the evidence: If the evidence "is susceptible to more than one rational interpretation, " including one that supports the decision of the Commissioner, the Commissioner's conclusion "must be upheld." Thomas v. Barnhart, 278 F.3d ...

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