United States District Court, E.D. Washington
CHARLES E. PHILLIPS, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JAMES P. HUTTON, Magistrate Judge.
BEFORE THE COURT are cross-motions for summary judgment. ECF No. 16, 18. Attorney Dana C. Madsen represents plaintiff (Phillips). Special Assistant United States Attorney Diana Andsager represents defendant (Commissioner). The parties consented to proceed before a magistrate judge. ECF No. 8. After reviewing the administrative record and the briefs filed by the parties, the court grants defendant's motion for summary judgment, ECF No. 18.
Phillips applied for disability income benefits (DIB) and supplemental security income (SSI) benefits June 10, 2010 alleging disability beginning July 1, 1988, amended to June 27, 2007 (Tr. 21, 88-89, 231-37, 238-41). His claims were denied initially and on reconsideration (Tr. 163-66, 167-69, 170-73, 174-76, 179-ORDER 82). Administrative Law Judge (ALJ) James W. Sherry held a hearing January 25, 2012 (Tr. 86-121)[A prior hearing was held June 11, 2007 before ALJ G. Alejandro Martinez. Tr. 48-83).] At the 2012 hearing, Phillips and a vocational expert testified. On February 14, 2012, the ALJ issued an unfavorable decision (Tr. 21-33). The Appeals Council denied review (Tr. 1-5). August 15, 2013 Phillips appealed pursuant to 42 U.S.C. §§ 405(g). ECF No. 1, 5.
STATEMENT OF FACTS
The facts have been presented in the administrative hearing transcript, the decision below and the parties' briefs. They are only briefly summarized here and throughout this order as necessary to explain the Court's decision.
Phillips was 41 years old at onset and 46 at the 2012 hearing. He graduated from high school, served in the military for six months and has worked as an stocker. He last worked in 2001. Phillips suffers advanced glaucoma, status post surgical repair; chronic right shoulder subluxation/dislocation; advanced degenerative joint disease (DJD. the right shoulder, status two post surgical repairs; left knee degeneration; lower left leg deep venous thrombosis; recurrent seizure disorder/epilepsy, unspecified; migraine headaches; an L1-2 compression fracture; alcohol dependence; dysthymia; adjustment disorder with depressed mood and personality disorder.
He reads with magnifying glasses and uses eye drops daily for glaucoma. Medications do not prevent seizures. He can stand ten to fifteen minutes and sit from 30 minutes to an hour. Reaching up with the right arm is a problem so he uses his left arm. He is able to lift ten pounds, cooks easy meals and do laundry, but, he testified, he cannot drive or shop. He began getting migraine headaches in 2010 or 2011. They are severe and occur two to three times a week; a prescribed medication helps. He suffers tremors due to "nervousness or anxiety or whatever." Phillips rolls his own cigarettes, watches television and plays video games. He visits friends three to five times a week. He is compliant now with taking prescribed medication, but admits he was not in the past (Tr. 71-74, 79, 91-93, 96-102, 104-110, 112-13, 115, 260, 263, 265).
SEQUENTIAL EVALUATION PROCESS
The Social Security Act (the Act) defines disability as the "inability to engage in any substantial gainful activity by reason of any 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 plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
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. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medially severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If plaintiff 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, which compares plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff's residual functional capacity (RFC) is considered. If plaintiff cannot perform past relevant work, the fifth and final step in the process determines whether plaintiff is able to perform other work in the national economy in view of plaintiff's residual functional capacity, age, education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once plaintiff establishes that a mental or physical impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" which plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)(citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
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. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting ...