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Lemley v. Colvin

United States District Court, E.D. Washington

April 15, 2014

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


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are Plaintiff Maurie Lemley's (Plaintiff's) Motions for Summary Judgment, ECF No. 33, 37, and the Commissioner of Social Security's (Defendant's) Cross-Motion for Summary Judgment, ECF No. 38. Plaintiff is unrepresented and is thus proceeding pro se; Special Assistant United States Attorney Jeffrey Eric Staples represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 7. After considering the administrative record, briefs filed by the parties, and the oral argument provided on April 14, 2014, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motions for Summary Judgment.


Plaintiff protectively filed applications for Disability Insurance Benefits and Supplemental Security Income on June 2, 2010, alleging disability since April 1, 2010, due to hepatitis C with chronic muscle and joint pain; rheumatoid arthritis; gout; and depression. Tr. 180. The applications were denied initially and upon reconsideration. Administrative Law Judge (ALJ) Caroline Siderius held a hearing on April 24, 2012, Tr. 26-63, and issued an unfavorable decision on June 11, 2012, Tr. 71-82. The Appeals Council denied review on June 13, 2013. Tr. 11-17. The ALJ's June 2012 decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on August 9, 2013. ECF No. 2, 5.


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

Plaintiff was born on May 22, 1964, and was 45 years old on the alleged onset date, April 1, 2010. Tr. 198. He completed the 10th grade in school, received his GED and attended some college. Tr. 364. Plaintiff indicated he stopped working on December 28, 2009, because he was "fired for something [he] did not do." Tr. 180. However, he asserts his impairments did not prevent him from performing work until April 1, 2010. Tr. 180. Plaintiff testified at the administrative hearing that he is not able to work because he gets too tired and sore. Tr. 33. He stated if he tries to do physical tasks, like mow the lawn, he gets so tired he may end up sleeping for 20 hours. Tr. 34. He also indicated he has pain all over his body, including sharp pains in his joints. Tr. 34. Plaintiff testified he gets depressed because he can no long do the things he used to be able to do. Tr. 52. He stated he spends 18 hours a day lying down and is not able to do anything other than sleep for eight hours in a day. Tr. 53-54.

Irvine S. Belzer, M.D., testified as a medical expert at the administrative hearing. Dr. Belzer indicated Plaintiff has persistent hepatitis C, mild disc disease of the lumbar spine, a history of obstructive airways disease, and a history of gout. Tr. 36-37. Dr. Belzer stated that the treatment for hepatitis C can be very debilitating, like chemotherapy, and the side effects can last for two to three months. Tr. 38-39. Given the recent liver function tests in the record, Dr. Belzer opined Plaintiff's most recent treatment for hepatitis C had not been successful. Tr. 39. Dr. Belzer testified there was no further treatment available to Plaintiff and the hepatitis C disease could be progressive. Tr. 39.


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, 140-142 (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 ALJ found Plaintiff had not engaged in substantial gainful activity since April 1, 2010, the alleged onset date. Tr. 73. At step two, the ALJ determined Plaintiff had the following severe impairments: hepatitis C, degenerative disc disease of the lumbar spine, obstructive airway disease and depression. Tr. 73. The ALJ specifically noted the medical record did not indicate a diagnosis of fibromyalgia; therefore, fibromyalgia had not been established as a medially determinable impairment. Tr. 74-75. At step three, the ALJ found Plaintiff's severe impairments did not meet or medically equal a listed impairment. Tr. 75.

The ALJ assessed Plaintiff's RFC and determined Plaintiff could perform light exertion level work with the following limitations: he can lift 25 pounds occasionally and 10 pounds frequently; he can stand/walk for up to four hours a day and sit for up to six hours a day; he is precluded from climbing ropes/ladders/scaffolds but can occasionally climb stairs/ramps; he is able to occasionally reach overhead; he is able to perform one to three step tasks; he can have occasional contact with the public and coworkers; and he needs to avoid odors, gases, dust and fumes. Tr. 76-77. At step four, the ALJ determined Plaintiff was unable to perform his past relevant work as an injection mold machine tender, a molding machine supervisor and a hand packager. Tr. 80. At step five, the ALJ found that, considering Plaintiff's age, education, work experience and RFC, and based on the testimony of the vocational expert, Plaintiff was able to perform work existing in significant numbers in the national economy. Tr. 80-81. The ALJ thus determined that Plaintiff was not under a disability within the meaning of the Social Security Act at any time from April 1, 2010, the alleged onset date, through the date of the ALJ's decision, June 11, 2012. Tr. 82.


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 asserts multiple errors by the ALJ and the Social Security Administration. Tr. 33, 36, 37. He contends (1) a missing medical report from Dr. Thomas R. Hull should have been provided; (2) the ALJ erred at step two by not finding fibromyalgia and myofascial pain were severe impairments; (3) the ALJ failed to properly consider the statements of lay witnesses; (4) the physical RFC determination was improper; (5) the determination with respect to Plaintiff's ...

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