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Welcome v. Colvin

United States District Court, E.D. Washington

May 9, 2014

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


JUSTIN L. QUACKENBUSH, Senior District Judge.

Plaintiff appeals from the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his application for Supplemental Security Income ("SSI") after a hearing before an Administrative Law Judge ("ALJ"). This case, filed on April 22, 2013, was reassigned to the undersigned on February 6, 2014. (ECF No. 20).

Before the court are Cross-Motions for Summary Judgment and Plaintiff's Reply. (ECF Nos. 15, 17, 18). Plaintiff is represented by attorney James Tree. Defendant is represented by Assistant United States Attorney Pamela DeRusha and Special Assistant United States Attorney Jeffrey McClain. Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).


On November 15, 2009 Plaintiff filed his current application for SSI benefits alleging disability beginning September 18, 2009. (Tr. 32). Plaintiff's application was denied initially and on reconsideration. He requested a hearing before an ALJ. On October 25, 2011 an administrative hearing was held before ALJ James W. Sherry. Testifying at the hearing were the Plaintiff; Debra LaPoint, a vocational expert; and Mariam Welcome, Plaintiff's mother. On November 16, 2011 the ALJ issued an order finding Plaintiff not disabled since November 15, 2009, the date of his current application. (Tr. 32-49). The ALJ refused to reopen Plaintiff's prior unfavorable determinations of his applications for disability benefits filed in 2007 and 2008, however he stated that he considered "the complete medical history." (Tr. 32).

Plaintiff requested review of the ALJ's decision. The Appeals Council denied his request for review on February 22, 2013 (Tr. 1-6), making the ALJ's ruling the "final decision" of the Commissioner as the term is defined by 42 U.S.C. § 405(g). Plaintiff filed this action on April 22, 2013 seeking judicial review of the Commissioner's final decision.


The facts are contained in the medical records, administrative transcript (ECF No. 12)("Tr."), and the ALJ's decision, and are only briefly summarized here.

A. Plaintiff's History

Plaintiff was born in 1989 and was 22 years old at the time of the ALJ's hearing. He is approximately 5'8" tall and weighs 220 pounds. (Tr. 63). As a high school sophomore, Plaintiff was diagnosed by neurologist John R. Huddlestone, M.D., with multiple sclerosis ("MS") after experiencing two weeks of pain in his right eye followed by vision loss (acuity 20/600). (Tr. 385). Plaintiff has a limited work history with jobs which were part time and of short duration including a concession stand worker at a movie theater (2007), stocking shelves at Foot Locker (2008), and a fast food employee at Sonic (2008-2009) where he was hired and fired several times. Plaintiff testified he was "pretty much fired" from his job at the theater after the general manager told him he believed he was using his disease as an excuse after he asked to go home due to numbness in his left arm. (Tr. 75). Plaintiff testified that at Sonic the most he would work would be about six hours a day and as soon as he was home from work he would go to sleep. (Tr. 80). He testified he was fired from Sonic due to an MS flare up. (Tr. 80). Plaintiff lives with his mother and does not know his father. He completed the tenth grade, but failed to complete the 11th grade because of absence from school due to his psychiatric hospitalizations. He completed his GED in 2008.

B. Medical Evidence

Plaintiff suffers from the most common type of multiple sclerosis, relapsingremitting. MS is a disease affecting the central nervous system. The disease's aggravated state, known as a "flare-up" or "exacerbation, " can last for days or months. (Tr. 281). These episodes are followed by partial or complete recovery periods (remissions). Plaintiff's physical symptoms of the disease primarily include chronic fatigue, optic neuritis, and decreased sensation in his limbs.

Plaintiff has had adverse reactions to Copaxone therapy, as well as to steroids (prednisone) which precipitated a period of severe psychosis in 2007. During that time Plaintiff was suicidal and violent (beating up his mother)(Tr. 565), and was hospitalized at two psychiatric hospitals in Tulsa, Oklahoma. (Tr. 380). On April 19, 2007, he was admitted to the acute adolescent unit at the Parkside Psychiatric Hospital where he remained until May 15, 2007. (Tr. 73). He was discharged with mental health diagnoses of schizoaffective disorder, bipolar type and early onset chronic dysthymia and prescribed Risperdal, Propranolol, Tegretol, Clonidine, and Trazadone. He also started Betaseron injections to treat his MS.

More recently, on August 13, 2011, Plaintiff was involuntarily committed to the mental health ward of the Yakima Valley Memorial Hospital for a manic episode associated with his bipolar illness, sleep disturbance, delusions, grandiosity, auditory hallucinations and fear he would hurt his mother. (Tr. 722). Plaintiff's mania "settled down" after four days of reinstituting his mental health prescriptions of Risperidone and Depakote. He was discharged to his home on a 90-day "least restrictive alternative." (Tr. 722)

The medical record includes clinical treatment notes from numerous providers including those treating him during his hospitalizations, his treating neurologist, Dr. Huddlestone, treating family physicians Peter Harveson, M.D., Theodore Prier, M.D., Fady F. Sabry, M.D., and Allen Chen, M.D. of Figgs Eye Clinic. Consultative psychological evaluations were conducted on April 14, 2010 by Jay M. Toews, Ed.D. (Tr. 504-511); on November 29, 2010 by social worker, M. Gabriela Mondragon, MSW (Tr. 638-643); and on June 1, 2011 by social worker Russell Anderson, LICSW (Tr. 648-649). The record also contains the reviews of non-examining agency medical professionals, Sharon Underwood, Ph.D. (Tr. 512-528); Norman Staley, M.D. (Tr. 530-538); and James Bailey, Ph.D. (Tr. 539).

C. Commissioner's Findings

The ALJ found at Step 1 that Plaintiff had not engaged in substantial gainful activity since November 15, 2009, the date of Plaintiff's most recent SSI application. (Tr. 34).

At Step 2, the ALJ determined that Plaintiff had the following severe impairments: multiple sclerosis, relapsing, remitting type; optic neuritis; obesity; hypertension; adjustment disorder; dysthymic disorder; Bipolar disorder with mania and psychosis; and anxiety. (Tr. 34).

At Step 3, considering the effects of obesity, the ALJ determined that the Plaintiff's impairments, alone or in combination, did not meet or medically equal one of the listed impairments in 20 CFR Pt. 404 Subpt. P App 1 (Listings).

At Step 4, the ALJ determined the Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 CFR 416.967(b) with certain exertional and non-exertional limitations.

The claimant [can] lift[] and carry[] no more than 20 pounds occasionally, and 10 pounds frequently. The claimant can stand and/or walk for about 5 hours in an 8-hour workday, and sit for about 6 hours in an 8-hour workday. The claimant has an unlimited ability to push and pull within the lifting restrictions specified above. The claimant can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. The claimant cannot climb ladders, ropes, or scaffolds. The claimant should avoid concentrated exposure to extreme heat, wetness humidity, poorly ventilated areas, fumes, odors, dust, chemicals, gases, and hazards, such [as] unprotected heights, and moving machinery. The claimant is capable of understanding and performing simple, routine, and repetitive tasks, and some well learned detailed tasks. The claimant can perform occasional decision-making in a low-stress job, and adapt to occasional changes in the work setting. The claimant can have superficial contact with the general public, co-workers, and supervisors. The claimant cannot work in an environment with fast-paced production requirements.

(Tr. 37). In the Step 4 findings, the ALJ discussed the medical evidence and Plaintiff's testimony, but did "not find all of the claimant's symptom allegations to be credible." (Tr. 37). The ALJ determined Plaintiff had no past relevant work. (Tr. 42).

At Step 5, the ALJ found transferability of job skills not an issue because Plaintiff had no past relevant work. (Tr. 43). The ALJ also considered that Plaintiff is a "younger individual" as defined by 20 C.F.R. 416.963 and has a limited education. (Tr. 42-43). Relying upon the testimony of vocational expert, Deborah LaPointe, the ALJ concluded that there are unskilled jobs that exist in significant numbers in the national economy that the claimant can perform, including housekeeping/cleaner (DOT 323.687-104, SVP 2, light) and cannery worker (DOT XXX-XXX-XXX, SVP 2, light). (Tr. 43). Accordingly, the ALJ concluded that Plaintiff was not disabled, as defined by the Social Security Act, from November 15, 2009 to November 16, 2011.


A. Sequential Evaluation

The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of a medically determinable 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). The Act also provides that a claimant shall be determined to be under a disability only if the impairments are of such severity that the claimant is not only unable to do his previous work but cannot, considering claimant's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987):

Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is, benefits are denied. If he is not, the decision maker proceeds to Step 2.

Step 2: Does the claimant have a medically severe impairment or combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step.

Step 3: Does the claimant's impairment meet or equal one of the listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. Pt. 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to Step 4.

Step 4: Does the impairment prevent the claimant from performing work he has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the inquiry proceeds to the Fifth and final Step.

Step 5: Is the claimant able to perform other work in the national economy in view of his age, education and work experience? 20 ...

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