United States District Court, E.D. Washington
REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOHN T. RODGERS, Magistrate Judge.
BEFORE THE COURT are cross-Motions for Summary Judgment. ECF Nos. 13, 14. Attorney Lora Lee Stover represents Plaintiff, and Special Assistant United States Attorney Jeffrey E. Staples represents the Commissioner of Social Security (Defendant). The parties have not consented to proceed before a magistrate judge. Accordingly, IT IS RECOMMENDED Defendant's Motion for Summary Judgment be GRANTED, and Plaintiff's Motion for Summary Judgment be DENIED.
On September 2, 2010, Plaintiff filed both a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income. Tr. 26; 194. In both applications, Plaintiff alleged disability beginning November 30, 2008. Tr. 26; 53. Plaintiff reported that he was unable to work due to degenerative disc disease, muscle spasms and chronic pain. Tr. 197. The claims were denied initially and on reconsideration, and Plaintiff requested an administrative hearing. Tr. 26; 135-82.
On March 8, 2012, Administrative Law Judge Moira Ausems presided over a hearing at which vocational expert Trevor Duncan and Plaintiff, who was represented by counsel, testified. Tr. 51-96. On April 20, 2012, the ALJ issued a decision finding Plaintiff not disabled. Tr. 26-39. The Appeals Council declined review. Tr. 1-4. 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 hearing, Plaintiff was living with his girlfriend and her two children who were twelve and thirteen years old. Tr. 65-66. Plaintiff testified that his girlfriend does all the shopping, cooking and cleaning, along with help from her kids. Tr. 66; 74. Plaintiff also testified that he sometimes accompanies his girlfriend shopping, but he has to leave the store after 20 minutes due to back pain. Tr. 75.
Plaintiff's past work includes construction worker, material handler, grounds keeper and punch press operator. Tr. 84. Plaintiff estimated that he had been fired from "more than half" his jobs because he has had difficulties getting along with coworkers and supervisors. Tr. 75.
Plaintiff testified that he is unable to work due to pain in his upper back and neck. Tr. 57. He explained that it is hard for him to hold his head up, he has shooting pains in his right arm, and he has headaches every day. Tr. 58-60.
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, 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).
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 November 30, 2008, his application date. Tr. 28. At step two, the ALJ found Plaintiff suffered from the severe impairments of degenerative disc disease of the cervical spine with cervicalgia; right shoulder AC joint degenerative joint disease, mild, with tendinosis and bursitis; lumbar strain; depressive disorder not otherwise specified; and antisocial personality disorder. Tr. 28. At step three, the ALJ found Plaintiff's impairments, alone or in combination, do not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). Tr. 33. The ALJ found Plaintiff has the residual functional capacity to perform light work, with some exertional and non-exertional limitations:
[N]o more than occasional postural activities with the exception of no climbing of ladders, ropes or scaffolds and no crawling. He can perform no more than occasional overhead reaching with the left upper extremity and no overhead reaching with the right upper extremity. He should avoid even moderate exposure to vibration and hazards, including commercial driving. He is capable of simple, repetitive tasks and no more than superficial contact with coworkers and the general public.
Tr. 34. At step four, the ALJ found that Plaintiff is unable to perform past relevant work. Tr. 37. The ALJ determined that considering Plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers that Plaintiff can perform, such as parking lot attendant, small products assembler, and office cleaner. Tr. 38. As a result, the ALJ concluded that Plaintiff has not been disabled within the meaning of ...