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Bowron v. Colvin

United States District Court, E.D. Washington

August 22, 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. 20, 21. Attorney D. James Tree represents Plaintiff; Special Assistant United States Attorney Benjamin J. Groebner 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 Plaintiff's Motion for Summary Judgment and DENIES Defendant's Motion for Summary Judgment.


On May 6, 2009, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning January 1, 2007. Tr. 21. Plaintiff reported she could not work due to "ADHD, Bi-Polar, Anxiety, Mental Disability." Tr. 129. Plaintiff's claim was denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). Tr. 73-108. A hearing was held on September 6, 2011, at which medical expert Larry Kravitz, Ph.D., vocational expert Diane K. Kramer, and Plaintiff, who was represented by counsel, testified. Tr. 439-479. ALJ Caroline Siderius presided. Tr. 439. The ALJ denied benefits on October 6, 2011. Tr. 21-29. The instant matter is before the 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 hearing, Plaintiff was 41 years old, living with her three children, ages 14, 11 and 8. Tr. 454, 456. Plaintiff left high school after the eleventh grade. Tr. 230.

Plaintiff last worked as a waitress, and she said she was fired because she was often late and because she did not get along well with her supervisor. Tr. 454. She has also worked as a cashier at a convenience store. Tr. 230.

Plaintiff testified she has hypoglycemia, back pain, and nerve damage in her back, but that the "main reason" she cannot work is that she becomes "overwhelmed." Tr. 459. She said that her three children are special needs: all three have ADHD, one has a mood disorder, and another has Asperger's. Tr. 459. Plaintiff's mother helps her care for the children. Tr. 463-464.

Plaintiff plans and prepares meals, performs housework and walks the dogs. Tr. 230. She does not have a driver's license. Tr. 230-231.

Plaintiff testified she takes medication to help with her symptoms, and, in the past, she has responded well to medication. Tr. 231, 461. She estimated that three to four times per month she experiences a low day, and she stays in bed all day. Tr. 465.


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, with deference 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).


At step one of the sequential evaluation process, the ALJ found Plaintiff has not engaged in substantial gainful activity since May 6, 2009, the alleged onset date. Tr. 23. At step two, the ALJ found Plaintiff suffered from the severe impairments of attention deficit hyperactivity disorder, bipolar disorder and depression. Tr. 23. 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. 24. The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform a full range of work at all exertional levels but with the following nonexertional limitations, restricting Plaintiff to "simple 1-3 step tasks but no detailed work." Tr. 25. Also, Plaintiff was limited to "no more than occasional changes in work setting" and "routine superficial contact with the public and no more than occasional contact with coworkers." Tr. 25.

The ALJ found that Plaintiff is unable to perform past relevant work. Tr. 27. Considering Plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can perform, such as cleaner and laundry worker. Tr. 27-28. As a result, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 28.


Plaintiff contends that the ALJ erred in determining credibility, weighing the medical opinion evidence, and in the Step Five determination. ECF No. 20 at 8.


A. Credibility

Plaintiff contends the ALJ erred by finding Plaintiff had little credibility. ECF No. 20 at 15-18.

The ALJ is responsible for determining credibility. Andrews, 53 F.3d at 1039. Unless affirmative evidence exists indicating that the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ's findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), quoting Lester, 81 F.3d at 834. If objective medical evidence exists of an underlying impairment, the ALJ may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-348 (9th Cir. 1991).

To determine whether the claimant's testimony regarding the severity of the symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. See, e.g., Fair v. Bowen, 885 F.2d 597, 602-604 (9th Cir. 1989); Bunnell, 947 F.2d at 346-347.

The ALJ found Plaintiff's allegations about the severity of her symptoms were not credible. Tr. 25. The ALJ noted that while Plaintiff reported severe physical impairments related to her back, knee and more recently, bursitis, no evidence suggests that these are severe impairments. Tr. 26. Also, the ALJ found no evidence established that Plaintiff's neck and shoulder impairments, and her symptoms related to bursitis, were expected to last for more than a 12 month period. Tr. 26. Additionally, the ALJ found that while Plaintiff had "some" mental limitations, the allegations of debilitating symptoms are not ...

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