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Schriver v. Colvin

United States District Court, E.D. Washington

March 24, 2015

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JOHN T. RODGERS, Magistrate Judge.

BEFORE THE COURT are cross-Motions for Summary Judgment. ECF No. 14, 16. Attorney Dana C. Madsen represents Keith Eugene Schriver, Jr. (Plaintiff); Special Assistant United States Attorney Franco L. Becia represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 7. After reviewing the administrative record and briefs filed by the parties, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.


Plaintiff filed applications for a period of disability, Disability Insurance Benefits and Supplemental Security Income (SSI) on October 7, 2008, alleging disability since July 15, 2006, due to heart issues, headaches, and problems with his left ankle, right knee, right elbow and lower back. Tr. 155. The applications were denied initially and upon reconsideration. Administrative Law Judge (ALJ) R.J. Payne held a hearing on February 26, 2010, Tr. 31-67, and issued an unfavorable decision on March 11, 2010, Tr. 16-27. The Appeals Council denied review and Plaintiff thereafter commenced action in federal court. On September 12, 2011, Magistrate Judge James P. Hutton granted Plaintiff's motion for summary judgment and remanded the matter on one specific issue: A new step five determination with the assistance of a vocational expert. Tr. 372-388.

The Appeals Council entered an order of remand on April 3, 2012, Tr. 404-406, and ALJ Payne held a new hearing on August 2, 2012, Tr. 389-403. The ALJ issued another unfavorable decision on August 24, 2012, Tr. 349-360, and the Appeals Council declined further action on March 20, 2014, Tr. 334-337. The August 24, 2012, decision thus became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on May 14, 2014. ECF No. 1, 4.


The facts of this case have not changed since Judge Hutton's September 12, 2011, remand order. Tr. 372-388. No new or updated medical records have been submitted, other than a one-page document indicating Plaintiff was taking no medications, Tr. 447, and no new or additional testimony was elicited from Plaintiff or any medical professionals, Tr. 389-403.

Plaintiff was born on July 24, 1962, and was 43 years old on the alleged onset date, July 16, 2006. Tr. 359. Plaintiff completed high school and has worked as a vineyard laborer, hotel houseman, and warehouse worker. Tr. 40-44, 160, 167.

Plaintiff testified at the first administrative hearing that his ankle hurts daily, he has constant headaches and occasional back pain, and an elbow injury prevents lifting. Tr. 47-48, 50. Plaintiff reported he has had vision problems since childhood. He can only see with one eye at a time and has no binocular vision. Plaintiff testified he suffers heart palpitations five to six times a month and about three times a month this issue causes him to blackout. Tr. 51-53. Plaintiff stated he has sleep problems, he can stand one hour and walk two hours, he "nods off" after sitting for an hour, and he is able to lift and carry 10-15 pounds. Tr. 54-56, 61. Plaintiff also testified he suffers from depression and has suicidal thoughts every few days. He lives alone with his dog in an isolated area without running water, electricity, or indoor plumbing. The nearest water source is a half-mile from his home. He sees a neighbor about once a month. Tr. 53, 56-60, 63-64.

At the August 2, 2012, administrative hearing, vocational expert K. Diane Kramer (VE) testified. Tr. 392-402. The VE identified Plaintiff's past relevant work as insulation installer; building maintenance laborer; seed packer, laborer; and vineyard supervisor, Tr. 393-398, and opined that Plaintiff would not be able to perform any of his past relevant work. Tr. 399-400. In response to a hypothetical which reflected Plaintiff's residual functional capacity, the VE testified that work existed in significant numbers in the national economy which Plaintiff could perform, including the jobs of cleaner I, advertising material distributor, and parking lot attendant. Tr. 399-401.


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, although deference is owed 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 exists to support the administrative findings, or if conflicting evidence exists that will support 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, 140-142 (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 1098-1099. 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 ...

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