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McAndrews v. Colvin

United States District Court, E.D. Washington

October 9, 2014

BARRY McANDREWS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROBERT H. WHALEY, Senior District Judge.

BEFORE THE COURT are cross-motions for summary judgment. ECF Nos. 20, 22. Attorney D. James Tree represents Plaintiff; Special Assistant United States Attorney Jeffrey R. McClain represents the Commissioner of Social Security (Defendant). 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 August 14, 2006, Plaintiff filed a Title II application along with a Title XVI application for a period of disability and disability insurance benefits, alleging disability in both claims beginning October 15, 2001. Tr. 134; 264. Plaintiff indicated that he was unable to work due to asthma, ADHD, depression and sinus problems. Tr. 269. The claim was denied initially, denied upon reconsideration, and Plaintiff subsequently requested a hearing. Tr. 127-54; 159-97. On March 27, 2009, ALJ R. S. Chester presided over an administrative hearing at which vocational expert Daniel McKinney and Plaintiff, who was represented by counsel, testified. Tr. 50-71. ALJ Chester denied Plaintiff's claim on April 14, 2009. Tr. 134-47.

Plaintiff requested review from the Appeals Council, and along with the request, Plaintiff submitted an opinion letter from vocational expert Roger Wentz, dated September 25, 2003. Tr. 341-44. On February 6, 2011, the Appeals Council remanded the case and instructed the ALJ to obtain supplemental evidence from a vocational expert to clarify the assessed limitations on Plaintiff's occupational base. Tr. 155-56. The Appeals Council also directed the ALJ to offer the Plaintiff an opportunity for hearing, to address the evidence submitted with the request for review, and to issue a new decision. Tr. 156.

On July 21, 2011, ALJ Caroline Siderius presided over the second administrative hearing, at which medical expert Margaret Moore, Ph.D., vocational expert Daniel McKinney, and Plaintiff, who was represented by counsel, testified. Tr. 73-126. ALJ Siderius denied Plaintiff's claim on August 25, 2011. Tr. 21-39. The Appeals Council declined review. Tr. 1-5. 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 second hearing, Plaintiff was 47 years old, single, and was staying with friends. Tr. 97; 106. He said he was in special education classes up to the eighth grade, and he quit school after the tenth grade. Tr. 55.

Plaintiff testified that he suffers from chronic sinus infections. Tr. 109. He said that he misses too many days of work and has to quit because of his frequent sinus problems. Tr. 109. Plaintiff said he last worked at McDonald's, and that job ended because he had sinus surgery. Tr. 97. He testified that he has been in jail more than ten times in the past ten years. Tr. 99. At the time of the hearing, Plaintiff said he had been "clean and sober" since May, 2011. Tr. 99.

Plaintiff's daily activities include attending AA meetings and group counseling sessions. Tr. 106-07. He also watches television. Tr. 107. He has a ten-year old daughter whom he cares for on Saturdays, and he said he takes her to Walmart, to see movies, and to the park. Tr. 108.

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 October 15, 2001, the alleged onset date. Tr. 23. At step two, the ALJ found Plaintiff has had the following severe impairments: personality disorder, learning disorder, depressive disorder; substance abuse; asthma; and sinusitis. Tr. 24. 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 404, Subpart P, Appendix 1 (20 C.F.R. 416.929(d), 416.925 and 416.926). Tr. 24-25. The ALJ found that Plaintiff has the residual functional capacity to perform light work with certain additional limitations including: "the claimant can never climb ladders, ropes, and scaffolds." Tr. 26. The ALJ concluded that Plaintiff could not perform past relevant work, but 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 parts assembler and packing line worker. Tr. 38. As a result, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 39.

ISSUES

Plaintiff argues that the ALJ erred by: (1) failing to comply with the Appeals Council remand order; (2) improperly evaluating Plaintiff's impairments at step two; (3) finding Plaintiff had little credibility; (4) improperly weighing the medical evidence; and (5) relying upon the testimony of the vocational expert when the hypothetical was incomplete. ECF No. 20 at 13; 23.

1. Appeals Council Remand Order.

Plaintiff contends that the ALJ failed to comply with the Appeals Council order by failing to consider the opinions of vocational ...


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