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Comstock v. Berryhill

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

October 6, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Mary Alice Theiler United States Magistrate Judge.

         Plaintiff William Comstock 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 Disability Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, this matter is AFFIRMED.


         Plaintiff was born on XXXX, 1963.[1] He completed the eighth grade and previously worked as a glazier, caulker, and auto windshield installer. (AR 50, 83, 252.)

         Plaintiff protectively filed a DIB application in November 2012, alleging disability beginning July 1, 2011. (AR 191.) Plaintiff remained insured for DIB through December 31, 2013 and was required to establish disability on or prior to that “date last insured” (DLI). See 20 C.F.R. §§ 404.131, 404.321. His application was denied initially and on reconsideration.

         On June 4, 2014, ALJ David Johnson held a hearing, taking testimony from plaintiff, his wife, and a vocational expert (VE). (AR 40-89.) On August 15, 2014, the ALJ issued a decision finding plaintiff not disabled. (AR 20-35.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on February 22, 2016 (AR 9-14), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.


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


         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 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 the alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's left shoulder abnormality, low back abnormality, recent L5-mid metatarsal fracture, and sleep apnea severe. The ALJ found no severe mental impairment. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ concluded plaintiff's impairments did not meet or equal the criteria of a listed impairment.

         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 has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform light work not requiring more than occasional bending, stooping, crouching, or left upper extremity pushing or pulling; no more than frequent reaching, handling, or fingering; and not requiring the need to grab onto grab bars, railings, or ladders, work overhead with the left upper extremity, or walk on irregular surfaces. The ALJ found no past relevant work.

         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 the VE, the ALJ found plaintiff capable of performing other jobs, such as work as a small parts assembler, solder machine feeder, and tagger. The ALJ also found that, even if more limited, plaintiff could still perform the occupations identified, as they are unskilled, consisting of simple tasks that require little or no judgment. He noted the VE's testimony the occupations could still be performed with additional limitations related to teamwork, interaction, and routine nature of tasks.

         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). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) 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 asserts error in the consideration of medical opinions and evidence relating to his shoulder impairment, ability to stand and walk, and mental impairments, and in the rejection of his wife's testimony. He requests remand for further proceedings. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Medical Opinions and Evidence

         Plaintiff contends the ALJ erred in considering medical opinions from examining physicians, and in construing medical evidence. Because the record contained contradictory physician opinions, the ALJ could only reject the opinion of the examining physicians with “‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

         The ALJ is responsible for resolving conflicts in the medical record. Carmickle v. Comm'r of SSA, 533 F.3d 1155, 1164 (9th Cir. 2008). When evidence reasonably supports either confirming or reversing the ALJ's decision, the court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). “Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Morgan v. Commissioner of the SSA, 169 F.3d 595, 599 (9th Cir. 1999).

         A. Shoulder Impairment

         In February 2013, consultative examiner Dr. Timo Hakkarainen opined plaintiff could lift twenty pounds occasionally and ten pounds frequently on the right, and ten pounds occasionally and frequently on the left; could reach, handle, and finger without limitation on the right and less than an hour on the left; should not climb ladders, kneel, crouch, or crawl; and should not work around heights. (AR 315.) Plaintiff avers the ALJ erred in rejecting this opinion, [2] and in accepting the contrary opinion of consultative examiner Dr. Gary Gaffield and the observations of psychological consultative examiner Dr. Lezlie Pickett.

         The ALJ did not wholly reject the shoulder-related limitations assessed by Dr. Hakkarainen. He found plaintiff able to perform light work, which involves lifting no more than ten pounds frequently, and included limitations to no overhead work with the left upper extremity, no climbing ladders, ropes, or scaffolds, and no work requiring plaintiff to hold on to grab bars, railings, or ladders (AR 26, 315.) However, the RFC allows for occasional lifting of twenty pounds on both the left and right, occasional left upper extremity pushing and pulling, and frequent reaching, handling, or fingering on the left and right. (Id.) The RFC is consistent with the April 2014 ...

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