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Wazzan v. Colvin

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

January 28, 2015

AHMED AL WAZZAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL

MARY ALICE THEILER, Chief Magistrate Judge.

Plaintiff Ahmed Al Wazzan proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends that this matter be AFFIRMED.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1981.[1] He completed one year of college in Iraq. (AR 48.)

Plaintiff protectively filed an application for SSI on November 30, 2010, alleging disability beginning January 1, 1995. (AR 19, 161-69.) Plaintiff later amended his onset date to November 30, 2010, the date of his application. (AR 44-45.) His application was denied at the initial level and on reconsideration. (AR 95-98, 104-12.)

On April 17, 2012, ALJ Mary Gallagher Dilley held a hearing, taking testimony from plaintiff, plaintiff's social worker, and a vocational expert. (AR 40-70.) Due to plaintiff's limited English proficiency, an interpreter was also present at the hearing. (AR 40.) On June 28, 2012, the ALJ issued a decision finding plaintiff not disabled. (AR 16-39.)

Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on February 28, 2014 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. § 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since November 30, 2010, the application date. (AR 21.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's mild lumbar degenerative disk disease, headaches, post traumatic stress disorder (PTSD), and depression to be severe impairments at step two. (AR 21-25.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that plaintiff's impairments did not meet or equal the criteria of a listed impairment. (AR 25-26.)

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to lift and/or carry twenty pounds occasionally and ten pounds frequently. The ALJ found plaintiff could stand and/or walk six hours in an eight hour workday and sit for six hours in an eight hour work day, but could never climb ladders, ropes, or scaffolds. Further, the ALJ found plaintiff could occasionally balance and should avoid even moderate exposure to hazards. The ALJ noted plaintiff has minimal skills in verbal English and is unable to read English and limited plaintiff to simple, routine work. (AR 26.) The ALJ found plaintiff had no past relevant work. (AR 34.)

If a claimant demonstrates an inability to perform past relevant work, or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of a vocational expert, the ALJ found plaintiff capable of performing other jobs, such as small parts assembler, food sorter, and sandwich board carrier. (AR 34-35.)

This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

Plaintiff argues the ALJ erred by: (1) failing to provider clear and convincing reasons to discredit plaintiff's testimony; (2) improperly rejecting the opinions of Christie Schmid, MSW, Mustapha Hydara, ARNP, Becky Sherman, Ph.D., Victoria McDuffee, Ph.D., and George Ankuta, Ph.D.; and (3) failing to properly incorporate all of plaintiff's mental limitations into her RFC finding. He asks that the ALJ's decision be reversed and his claim remanded for an award of benefits or, in the alternative, for further proceedings. The Commissioner argues the ALJ's decision is supported by substantial evidence and should be affirmed.

Credibility

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). See also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

The ALJ in this case found that while plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, his statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. Contrary to plaintiff's contention, the ...


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