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Friesen v. Colvin

United States District Court, E.D. Washington

June 1, 2015

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



BEFORE THE COURT are cross-Motions for Summary Judgment. ECF No. 14, 18. Attorney Joseph Linehan represents Thomas E. Friesen (Plaintiff); Special Assistant United States Attorney Thomas M. Elsberry represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 6. 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 an application for Disability Insurance Benefits and Supplemental Security Income Benefits on March 24, 2011, alleging disability since July 1, 2009, due to a gunshot wound to the left foot and resultant foot pain; hepatitis C; depression; anxiety; lack of motivation; difficulty being around people; trouble focusing; inability to stand over 1 ½ hours, walk more than two blocks, and bend over; and painful twisting. Tr. 230-238, 245. The applications were denied initially and upon reconsideration. Administrative Law Judge (ALJ) Caroline Siderius held a hearing on February 13, 2013, Tr. 45-92, and issued an unfavorable decision on March 14, 2013, Tr. 25-40. The Appeals Council denied review on April 2, 2014. Tr. 1-6. The ALJ’s March 2013 decision 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 27, 2014. ECF No. 1, 4.


The facts of the case are set forth in the administrative hearing transcript, the ALJ’s decision, and the briefs of the parties. They are only briefly summarized here.

Plaintiff was born on July 10, 1979, and was 29 years old on the July 1, 2009, alleged onset date. Tr. 230. Plaintiff received his GED in 1999 and last worked in July 2009 for a landscaping business. Tr. 246. Plaintiff reported he stopped working because of his condition. Tr. 245.

Plaintiff testified he is not able to perform labor jobs due to his foot injury and fatigue and his criminal record has prevented him from obtaining sedentary-type work. Tr. 71-73. He indicated he also has problems with back pain and headaches. Tr. 77-78. Plaintiff stated he could only sit about 30 minutes before needing to get up and change positions, stand for 15 minutes at a time, and walk about one block before he begins to experience foot pain. Tr. 76-77.

At the administrative hearing, Plaintiff’s counsel related that Plaintiff has a history of issues with methamphetamine, marijuana and some alcohol, but had been clean since February 2012. Tr. 50. Plaintiff testified he had been to prison on two occasions (possession of methamphetamine and second degree possession of stolen property) and jail multiple times, and stated it had been over a year since he last used methamphetamine. Tr. 70-71.

At the administrative hearing, medical expert Minh Vu, M.D., testified Plaintiff had a history of a gunshot wound in the left foot and, as a result, had the second toe of his left foot amputated in 2005; hepatitis C; and abdominal/flank pain. Tr. 54-55, 58. Dr. Vu opined Plaintiff should be limited to medium exertion level work with a limitation of standing/walking four hours a day due to his left foot problems; no limitations in sitting; only occasional use of his left lower extremity; and no climbing ladders, scaffolds and ropes. Tr. 63-64. Dr. Vu based his opinion that Plaintiff would be able to stand/walk up to four hours a day on the consultative assessment of Dr. Rose. Tr. 66. Dr. Vu indicated he did not see any other evidence of record to further limit Plaintiff’s residual functional capacity. Tr. 67-68. However, Dr. Vu responded that if Plaintiff did in fact have active hepatitis C, Plaintiff would be limited to light exertion level work. Tr. 68.


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 Court reviews the ALJ’s determinations of law de novo, deferring to a reasonable interpretation of the 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 substantial 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, 140-142 (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 Social Sec. ...

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