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Toothe v. Colvin

United States District Court, E.D. Washington

November 17, 2014

JAMES TOOTHE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


ROBERT H. WHALEY, Senior District Judge.

BEFORE THE COURT are cross-motions for summary judgment. ECF Nos. 13, 15. Attorney D. James Tree represents Plaintiff; Special Assistant United States Attorney Christopher J. Brackett 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.


On November 9, 2010, Plaintiff filed an application for supplemental security insurance income, alleging disability beginning January 30, 1997.[1] Tr. 20; 190. Plaintiff indicated that he was unable to work due to depression. Tr. 189. The claim was denied initially, denied upon reconsideration, and Plaintiff subsequently requested a hearing. Tr. 85-108. On June 21, 2012, ALJ Marie Palachuk presided over an administrative hearing at which Harvey Alpern, M.D., Marian S. Martin, Ph.D., vocational expert Diane Kramer and Plaintiff, who was represented by counsel, testified. Tr. 37-83. The ALJ denied Plaintiff's claim on July 27, 2012. Tr. 20-32. The Appeals Council declined review. Tr. 1-5. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).


At the time of the hearing, Plaintiff was 46 years old and living with a roommate in a trailer, in Selah, Washington. Tr. 66. Plaintiff graduated from high school and enlisted in the army. Tr. 68; 74. Plaintiff was a regular user of methamphetamine for about 15 years. Tr. 292. Plaintiff testified that he last used in August, 2009. Tr. 64.

Plaintiff has little work history. He briefly worked as a truck driver. Tr. 69. While driving the truck, he was involved in an accident, and he still has nightmares about the incident. Tr. 69. Plaintiff currently does not drive. Tr. 70.

Plaintiff said he has no friends, and most days, he stays in his room all day. Tr. 70. He testified that his roommate does the grocery shopping because when he is in a store, he loses his breath, his chest tightens and he feels like he is getting "closed in on." Tr. 70.


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).


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 had not engaged in substantial gainful activity since November 9, 2010, the amended alleged onset date. Tr. 22. At step two, the ALJ found Plaintiff has the following severe impairments: hepatitis C; hypertension; morbid obesity; depression disorder; anxiety disorder NOS, and amphetamine dependence in reported remission. Tr. 22. 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. 23. The ALJ found that Plaintiff has the residual functional capacity to perform light work with a few exertional and non-exertional restrictions. Tr. 26. The ALJ concluded that Plaintiff had no past relevant work, and 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 Production Assembler, Cleaner I, and Deliverer, outside. Tr. 31. As a result, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 31.


Plaintiff contends that the ALJ erred by: (1) failing to fully develop the record; (2) determining Plaintiff had little credibility; (3) improperly weighing the medical opinion evidence; and (4) relying upon an incomplete hypothetical. ECF No. 13 at 7-8.


1. Developing the Record.

Plaintiff argues that the ALJ failed to fully develop the record by failing to order an evaluation of Plaintiff by a licensed psychologist. ECF No. 13 at 17-18.

In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). An ALJ's duty to develop the record further is triggered when the evidence is ambiguous or when the record is inadequate to allow for proper evaluation of the evidence. Tonapetyan, 242 F.3d at 1150.

In this case, testifying expert Marian Martin, Ph.D., expressed uncertainty about the severity of Plaintiff's anxiety symptoms. Dr. Martin noted Plaintiff's medical history included mild anxiety symptoms, but Plaintiff also consistently asserted that he did better if he did not have to interact with people. Tr. 50. Dr. Martin also noted that in October, 2011, Christopher J. Clark, M.Ed., LMHC, and Deborah Blaine, M.S., diagnosed Plaintiff with chronic PTSD and panic disorder with agoraphobia. Tr. 50. At the hearing, Dr. Martin testified: "the anxiety symptoms look a lot more severe in [the Clark/Blaine report] than they have throughout the entire rest of the record." Tr. 51. As a result, Dr. Martin was uncertain about the severity of Plaintiff's anxiety disorder. Tr. 51.

Dr. Martin opined that if the Clark/Blaine report (referred to as "14F" below) was credited, Plaintiff would meet Listing 12.06:

A. Well, here's where I have my dilemma: if I look at most of the record, except for 14F, he would not meet or equal [a Listing]. If I look at - if I just take the 14F by itself, at face value, he would probably equal [Listing 12.06 - Anxiety Disorders]. The problem I have here is I have one record that has that in it, and it's October 2011. And I don't have that level of difficulty in any of the other records.
Q. (by ALJ) Do we have any physicians, psychologists, or psychiatrists who has corroborated a diagnosis of PTSD or panic disorder with agoraphobia?
A. I don't believe so. I think the only records we have in here are from, you know, an - there's an LCFW in 1F; there's a Masters level clinician in, I think, 3F and 5F; and then the last one, the 14F, was by Christopher Clark, who's got a master's of ...

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