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Jackson v. Colvin

United States District Court, E.D. Washington

April 11, 2014

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


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-Motions for Summary Judgment. ECF No. 21, 23. Attorney D. James Tree represents Dawn Michele Jackson (Plaintiff); Special Assistant United States Attorney Gerald J. Hill represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 7. After reviewing the administrative record and briefs filed by the parties, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.


Plaintiff protectively filed applications for Disability Insurance Benefits and Supplemental Security Income on January 17, 2007, alleging disability since November 1, 2006. Tr. 109, 117. Plaintiff alleges disability due to depression and joint pain. Tr. 145. The applications were denied initially and upon reconsideration. Administrative Law Judge (ALJ) Douglas Stults held a hearing on September 1, 2009, Tr. 23-48, and issued an unfavorable decision on December 16, 2009, Tr. 10-20. Plaintiff appealed the decision to the United States District Court, and, on April 9, 2012, Magistrate Judge Cynthia Imbrogno remanded the matter for additional proceedings. Tr. 427-441. Judge Imbrogno's thorough remand order indicated that (1) ALJ Stults erred at Step Five because the vocational expert's testimony regarding the occupation of almond blancher conflicted with the definition provided in the Dictionary of Occupational Titles; (2) ALJ Stults erred by failing to provide germane reasons for rejecting Crisis Case Manager Cindy Gregory's opinions; and (3) ALJ Stults failed to include the handling restrictions found by Tanvir Ahmad, M.D., in his RFC determination. Id. With respect to Plaintiff's argument as to Crystal Coffey, Pharm.D., Judge Imbrogno concluded ALJ Stults provided a germane reason for giving little weight to her opinions about Plaintiff's mental functioning. Tr. 437-439.[1] The Appeals Council vacated the original decision and remanded the case. Tr. 449.

A new hearing was conducted by ALJ Laura Valente on February 12, 2013. Tr. 375-408. ALJ Valente issued a partially favorable decision on April 26, 2013. Tr. 324-338. ALJ Valente found Plaintiff met the Listings criteria of sections 12.04 and 12.06 beginning on May 21, 2009. Tr. 334-337. Plaintiff filed this action for judicial review on July 11, 2013, ECF No. 1, challenging ALJ Valente's determination that Plaintiff was not disabled prior to May 21, 2009, Tr. 324-334.


The facts of the case are set forth in the administrative hearing transcripts, the ALJ's decisions, and the briefs of the parties. They are only briefly summarized here.

Plaintiff was born on April 12, 1961, Tr. 28, and was thus 45 years old on the November 2006 alleged onset date. Plaintiff has an eighth grade education. Tr. 28. Plaintiff testified at the September 2009 administrative hearing that she continued to work on a part-time basis cleaning vacant apartments after the alleged onset date (in 2007 and 2008). Tr. 29-31.

Plaintiff testified in September 2009 she spent her days working in her yard. Tr. 34. She indicated she prepared her own meals, performed housecleaning activities, did her own laundry, shopped for groceries and cared for a dog. Tr. 34-35. Plaintiff stated she would draw and work in her yard for recreation, visited her children and a grandchild, and attended church at least twice a month. Tr. 35-36.

At the February 2013 hearing, counsel for Plaintiff stated Plaintiff had spent the last two-and-a-half years living in a storage shed and had just moved into a house a couple of months prior to the hearing. Tr. 385. Plaintiff indicated she was not currently attending mental health treatment because counselors only wanted to talk to her "girls, " who are apparently two auditory hallucinations. Tr. 387. She testified she did not have a problem with drugs or alcohol: she did not drink, do drugs or take "mental health pills." Tr. 392. When asked if she had ever used drugs like methamphetamines, she stated it was "[her] business if [she] ever used drugs." Tr. 392. When asked a second time whether she had ever used drugs, Plaintiff responded "no." Tr. 393. Plaintiff was upset and emotional throughout the hearing and eventually exited the hearing prior to its conclusion. Tr. 399.


ALJ Valente found that although Plaintiff had worked after November 1, 2006, the alleged disability onset date, Plaintiff had not engaged in substantial gainful activity since that date. Tr. 327. The ALJ determined, at step two, that Plaintiff had the following severe impairments since the alleged onset date: schizoaffective disorder, depressive type; adjustment disorder; anxiety disorder; personality disorder; and alcohol abuse, in remission. Tr. 327. The ALJ noted Plaintiff also had the severe impairment of degenerative disk disease of the lumbar spine since May 14, 2009. Tr. 327. At step three, the ALJ concluded Plaintiff did not meet or medically equal one of the listed impairments prior to May 21, 2009, Tr. 328, but, beginning on May 21, 2009, the severity of Plaintiff's impairments met the criteria of sections 12.04 (affective disorders) and 12.06 (anxiety related disorders), Tr. 334. The ALJ assessed Plaintiff's RFC and determined that, prior to May 21, 2009, Plaintiff could perform medium work with the following limitations: she was limited to simple work; she had sufficient concentration to understand, remember and carry out simple, repetitive tasks; she could sustain attention and concentration in two hour increments with usual and customary breaks throughout an eight-hour workday for simple, repetitive tasks; she could work in proximity to an unlimited number of coworkers, but could not work in coordination with them; she was not likely to be a distraction to her coworkers; she could respond to simple workplace changes as would be consistent with simple, repetitive tasks; she could set work-related goals as would be required for simple, repetitive tasks; she required hands-on demonstration to initially learn new tasks; and she required an additional 10 minutes per day during the initial learning period to learn the new tasks. Tr. 329.

At step four, the ALJ found that, prior to May 21, 2009, Plaintiff was capable of performing her past relevant work as a home attendant, janitor, floor attendant, automobile self-serve gas station attendant and cleaner/housekeeper. Tr. 332. In the alternative, at step five, the ALJ concluded that, prior to May 21, 2009, considering Plaintiff's age, education, work experience and RFC, and based on the testimony of the vocational expert, there were jobs existing in significant numbers in the national economy that Plaintiff could have performed. Tr. 333-334. The ALJ thus determined Plaintiff was not under a disability within the meaning of the Social Security Act at any time from November 1, 2006, the alleged onset date, until the date of May 21, 2009, Tr. 334, but was disabled, within the meaning of the Social Security Act, beginning on May 21, 2009, Tr. 337. Because Plaintiff's date last insured was September 30, 2007, Plaintiff was not insured as of the date disability was established, May 21, 2009. Tr. 337. Consequently, Plaintiff's claim for a period of disability and disability insurance benefits was denied by ALJ Valente. Tr. 337.


In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the Court set out the standard of review:

A district court's order upholding the Commissioner's denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner 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 Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

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).

It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 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 Commissioner'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, 140-142 (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 1098-1099. 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, 1193-1194 (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).


The question presented is whether substantial evidence exists to support the ALJ's decision denying benefits and, if so, whether that decision is based on proper legal standards.

Plaintiff contends the ALJ erred by (1) improperly rejecting the opinions of Plaintiff's examining medical sources prior to May 2009 and a portion of Dr. Thompson's June 2009 medical record; (2) conducting an improper credibility analysis of Plaintiff; (3) failing to conclude that, prior to May 21, 2009, Plaintiff was presumptively disabled under Listing 12.04; and (4) failing to incorporate all of Plaintiff's ...

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