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Milligan v. Colvin

United States District Court, E.D. Washington

April 29, 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. 19, 20. Attorney D. James Tree represents Plaintiff, and Special Assistant United States Attorney Leisa A. Wolf 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 the briefs filed by the parties, the court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.


On February 4, 2010, Plaintiff filed a Title XVI application for supplemental security income, alleging disability beginning September 15, 2009. Tr. 19; 174. Plaintiff filed a previous application for supplemental security income that was denied by an administrative law judge on September 16, 2009. Tr. 19. In the current claim, Plaintiff reported that he was unable to work due to chronic back pain, shoulder pain, AD/HD, knee injuries, learning disability, and depression/anxiety. Tr. 178. Plaintiff's claim was denied initially and on reconsideration, and he requested a hearing before an administrative law judge (ALJ). Tr. 108-59.

On March 27, 2012, ALJ James W. Sherry held a hearing, at which medical expert Joseph Cools, Ph.D., vocational expert Trevor Duncan, M.Ed., and Plaintiff, who was represented by counsel, testified. Tr. 43-96. On May 1, 2012, the ALJ issued a decision finding Plaintiff not disabled. Tr. 19-30. The Appeals Council declined review. Tr. 1-3. 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 third hearing, Plaintiff was 28 years old, single, and living in a fifth wheel trailer with his brother. Tr. 70. He completed the 11th grade. Tr. 70.

Plaintiff worked for six months at a lodge, washing dishes and performing general maintenance tasks. Tr. 73. He testified is unable to work because he becomes so irritated, and his anxiety is "through the roof, " and the environment "basically flips a switch" and tells him "to close up and shut down." Tr. 74. Plaintiff attempted to work with Job Corps, but he said that ended when he became angry with the dorm staff, and Plaintiff hit a staff member with a steel chair. Tr. 76.

Plaintiff testified that he is in pain from his knee every-other-to-every-third day. Tr. 77. He said his mood is worse on days when he is in pain, and he has trouble getting along with others. Tr. 77-78. He said he experiences anxiety in large crowds, and he avoids he supermarket and the fair. Tr. 81. He also said the side effects of his pain medication makes it hard to focus and make him drowsy Tr. 82. In his disability report on appeal, Plaintiff stated that his anxiety had worsened, and his knee was giving out more often, and his back pain was worse. Tr. 207.

On Plaintiff's function report, he stated that he had no daily routine and that he will "do whatever I [feel] like doing that day." Tr. 199. He indicated that he takes care of feeding, watering and washing his dogs. Tr. 200. He also indicated that he prepares meals, performs yard work, and completes household chores every other day. Tr. 201. He also goes camping, fishing, hiking and hunting. Tr. 203.


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).

A prior final determination that a claimant is not disabled creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). A claimant may overcome this burden by proving "changed circumstances, " such as the existence of an impairment not previously considered, an increase in the severity of an impairment, or a change in the claimant's age category. See Schneider v. Commissioner, 223 F.3d 968, 973 (9th Cir. 2000).


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 February 4, 2010, his application date. Tr. 21. At step two, the ALJ found Plaintiff suffered from the severe impairments of depressive disorder, not otherwise specified; attention deficit hyperactivity disorder; generalized anxiety disorder with panic attacks; polysubstance dependence in remission; personality disorder, not otherwise specified; and chronic pain disorder with neck/back pain and right ankle pain. Tr. 21. 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. 22. The ALJ found that Plaintiff had the residual functional capacity to perform medium work:

[M]eaning that he can lift 50 pounds occasionally and 25 pounds frequently, and stand/walk for approximately six hours in an eighthour day and sit for approximately six hours in an eight-hour day. He can push and pull within his lifting restrictions. Additionally, the claimant is capable of performing simple, routine and repetitive tasks, in a low stress job, which is defined as a job with only occasional and simple changes in the work setting and occasional simple decision making required. The claimant would learn best by demonstration; either live or by video rather than by oral or written instruction. He is ...

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