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Frierson v. Colvin

United States District Court, W.D. Washington, Tacoma

November 19, 2014

KEITH T. FRIERSON, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

ORDER ON PLAINTIFF'S COMPLAINT

J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed ( see ECF Nos. 14, 15, 19).

After considering and reviewing the record, the Court concludes that the ALJ provided specific and legitimate rationale for failing to credit fully the opinions of examining doctor, Dr. Kathleen S. Mayers, Ph.D., noting that her opinion that plaintiff "might have difficulty maintaining attention and concentration through a normal eighthour workday" is based on plaintiff's self-report and is not consistent with the fact that plaintiff worked at substantial gainful activity levels following his 20-foot fall without added accommodation and that the record does not demonstrate any worsening of plaintiff's cognitive abilities since the fall. The ALJ provided germane reasons for not crediting fully lay opinions and also provided clear and convincing reasons for failing to credit fully plaintiff's allegations and testimony, such as his inconsistent statements.

Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff, KEITH T. FRIERSON, was born in 1968 and was 39 years old on the amended alleged date of disability onset of July 1, 2008 ( see Tr. 12, 272-73, 274-81). Plaintiff has a GED (Tr. 45). Plaintiff has worked as a janitor, dishwasher, floor cleaner, temporary laborer and resident assistant in an assisted living facility (Tr. 331-42). His last employment was at a care facility, where he was terminated, rehired and terminated several times allegedly for making mistakes (Tr. 67-72).

According to the ALJ, plaintiff has at least the severe impairments of "cocaine abuse; glaucoma; blindness in right eye; organic brain syndrome; [and] status post left shoulder/clavicle injury (20 CFR 404.1520(c) and 416.920(c))" (Tr. 14).

At the time of the hearing, plaintiff was living in a townhouse with his wife, his two teenage children and twenty year-old stepson (Tr. 37-38, 42).

PROCEDURAL HISTORY

Plaintiff's applications for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and following reconsideration ( see Tr. 141-52, 153-64, 169-83, 184-98). Plaintiff's requested hearing was held before Administrative Law Judge Michael Gilbert ("the ALJ") on November 6, 2012 ( see Tr. 33-140). On January 25, 2013, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 9-32).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Is the credibility assessment of plaintiff by the ALJ based on an improper analysis; (2) Did the ALJ err by failing to adequately explain why he rejected the part of the consultative examination by Dr. Kathleen Mayers, Ph.D., that would have required a different outcome than desired by the ALJ; (3) Did the ALJ err by using an improper legal analysis and unsupported evidentiary reasons to reject the lay witness evidence; and (4) Does the job number testimony of the VE at step 5 fail to meet the statutory requirements ( see ECF No. 15, pp. 1-2).

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) ( citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

DISCUSSION

(1) Is the credibility assessment of plaintiff by the ALJ based on ...


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