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Wood v. Colvin

United States District Court, E.D. Washington

September 8, 2014

MARION E. WOOD, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-Motions for Summary Judgment. ECF Nos. 17, 24. Attorney Dana C. Madsen represents Plaintiff; Special Assistant United States Attorney Terrye E. Shea 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.

JURISDICTION

On February 16, 2010, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning January 11, 2010. Tr. 141. Plaintiff indicated that he was unable to work due to impairments with his lower back, legs and hands. Tr. 298. The claim was denied initially, denied upon reconsideration, and Plaintiff subsequently requested a hearing. Tr. 141; 170-270. On February 4, 2011, ALJ R.J. Payne presided over an administrative hearing, at which medical expert Anthony E. Francis, M.D., vocational expert R. Thomas McKnight, Ph.D., and Plaintiff, who was represented by counsel, testified. Tr. 41-83. The ALJ denied Plaintiff's claim on February 24, 2011. Tr. 141-55. The Appeals Council remanded the case to ALJ Payne to reconsider Plaintiff's RFC related to his severe mental impairments, and to obtain vocational expert testimony to clarify the effect of the mental limitations on the occupational base. Tr. 161-62.

The second hearing occurred on July 31, 2012, and again ALJ Payne presided. Tr. 84-127. At this hearing, medical expert Marian F. Martin, Ph.D., vocational expert Daniel McKinney, and Plaintiff, who was represented by counsel, testified. Tr. 86-126. The ALJ denied Plaintiff's claim on August 20, 2012. Tr. 15-29. The Appeals Council declined review. Tr. 1-3. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).

STATEMENT OF FACTS

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 first hearing, Plaintiff was 47 years old, lived with his wife and one son. Tr. 293; 378. He had received special education instruction beginning in the second grade, and he dropped out of school in the eleventh grade. Tr. 379.

Plaintiff testified that the pain in his back and legs is severe, and he spends on average, between four and five hours per day in bed. Tr. 95. Plaintiff also testified that he started using a cane after he fell, and could not get up without assistance. Tr. 95-96. He said he continues to use a cane because his leg "is just still dead on me." Tr. 96. Plaintiff testified that he can walk half a block, and can stand for five to ten minutes at a time. Tr. 99. He said he can sit for 15 to 20 minutes before he has to change positions. Tr. 99. He said it hurts to climb stairs, he can carry only a gallon of milk, and his back pain keeps him from sleeping more than four to six hours per night. Tr. 100. Plaintiff also said he thinks about suicide "all the time." Tr. 104.

On his initial application for benefits, Plaintiff indicated that he watered the plants and lawn, prepared meals, swept the floor and shopped once per week at the grocery store. Tr. 306-08. He reported his hobbies as fishing and watching television with his wife. Tr. 309. Plaintiff has previously worked as an automobile mechanic, cabinet assembler, and automobile wrecker. Tr. 115-16.

STANDARD OF REVIEW

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 supports the administrative findings, or if conflicting evidence supports 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).

SEQUENTIAL PROCESS

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).

ALJ'S FINDINGS

At step one of the sequential evaluation process, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 11, 2010, the alleged onset date. Tr. 17. At step two, the ALJ found Plaintiff has had the following severe impairments: degenerative disc disease of the lumbar spine with intermittent radiculopathy, degenerative disc disease of the cervical spine, chronic obstructive pulmonary disease, learning disorder not otherwise specified, major depressive disorder, and somatoform disorder not otherwise specified. Tr. 17. At Step Three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 4504, Subpart P, Appendix 1 (20 C.F.R. §§ 416.929(d), 416.925 and 416.926). Tr. 21. The ALJ concluded that Plaintiff has the residual functional capacity to perform light work with some nonexertional limits. Tr. 22-23. The ALJ found that Plaintiff is capable of performing past relevant work as a cabinet assembler. Tr. 27. Alternatively, the ALJ concluded that 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 small products assembler, packer/inspector, small parts and product inspector, and table worker. Tr. 28. As a result, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 29.

ISSUES

Plaintiff contends that the ALJ erred by: (1) failing to find that Plaintiff met Listing 1.02; (2) improperly weighing the medical opinion evidence; and (3) finding Plaintiff was not credible. ECF No. 17 at 10-18.

1. Listing 1.02

Plaintiff contends that the ALJ erred by failing to credit the testimony of non-examining expert Anthony E. Francis, M.D., who, according to Plaintiff, opined that Plaintiff's impairments meet Listing 1.02 related to his back impairment. ECF No. 17 at 12-13. In response, Defendant points out that during both administrative hearings, Plaintiff's ...


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