United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING AND DISMISSING WITH
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.
McQueen appeals the decision of the Administrative Law Judge
(ALJ) finding her not disabled. She contends the ALJ
erroneously 1) rejected portions of the opinion of Bryan G.
Marchant, M.D.; and 2) did not provide legally sufficient
reasons for finding that her subjective allegations were
inconsistent with the record. Dkt. 12 at 1. As discussed
below, the ALJ did not err and her decision is supported by
substantial evidence. Accordingly, the Court
AFFIRMS the decision and
DISMISSES the case with prejudice.
McQueen filed her third application for a period of
disability and disability insurance benefits under Title II
of the Social Security Act (the Act), 42 U.S.C. §§
403-33, on October 26, 2012. Tr. 1040. Ms. McQueen alleges
disability due to cervical sprain, bilateral rotator cuff
tears, chronic pain, depression, and diabetes. Tr. 18, 349.
Ms. McQueen claims she has been disabled since August 6,
2010. However, the earliest date that could be considered is
October 4, 2011, the day after the last determination became
administratively final on October 3, 2011. Tr. 363, 1040. Her
disability insurance expired on September 30, 2013, the date
last insured (DLI). Tr. 1040, 1043. Thus, Ms. McQueen had to
show that she was unable to work between October 4, 2011 and
September 30, 2013. 20 C.F.R. § 404.1509.
Court previously remanded this case for further proceedings
in July 2016, under case number 3:15-cv-05893-JRC. In that
case, the ALJ was directed to discuss the examining physician
opinion of Dr. Marchant; reassess the evidence and opinion of
treating physician Dr. Naiman; reevaluate the RFC; reassess
Ms. McQueen's subjective allegations; and, hold a remand
hearing. Tr. 1121-33. The ALJ held a new hearing on
November 28, 2016 (Tr. 1060-87) and issued a decision on June
5, 2017, finding Ms. McQueen was not disabled from October 4,
2011 through September 30, 2013. Tr. 1040-53.
the five-step disability evaluation process,  the ALJ
previously found at steps one through three that Ms. McQueen
last worked on September 30, 2013 and that Ms. McQueen had
the following severe impairments: degenerative disc disease;
degenerative joint disease; status post rotator cuff repair,
left side; diabetes mellitus; hypertension; obesity; and
depression. The ALJ also found that these impairments did not
meet the Listings. Tr. 20-23. These findings were not
disturbed on appeal and were not revisited on remand.
five on remand, the ALJ found that through the DLI, Ms.
McQueen had the RFC to perform light work as defined in 20
CFR 404.1567(b) including the ability to do the following.
She can never push or pull overhead. She can occasionally
climb, stoop, kneel, crouch and crawl. She can occasionally
reach overhead. She can perform work in which concentrated
exposure to extreme cold, heat, vibration, fumes, odors,
dusts, gases, poor ventilation and/or hazards is not present.
In order to meet ordinary and reasonable employer
expectations regarding attendance, work place behavior and
production, she can understand, remember and carry out
unskilled, routine, and repetitive work that can be learned
by demonstration, and in which the tasks to be performed are
predetermined by the employer. She can cope with occasional
work setting change and occasional interaction with
supervisors. She can work in proximity to coworkers, but not
in a team or cooperative effort. She can perform work that
does not require interaction with the general public as an
essential element of the job, but occasional, incidental
contact with the general public is not precluded. Tr. 1045.
this RFC, the ALJ found at step four that Ms. McQueen was
unable to perform past relevant work as a home attendant. Tr.
26 (this finding was not disturbed on appeal). At step five,
the ALJ called a vocational expert (VE), who testified that
Ms. McQueen could work as a housekeeper, a small products
assembler, or a price marker. Tr. 1053.
The ALJ's Assessment of Dr. Marchant's
March 6, 2010, independent medical examiner and orthopedic
surgeon Bryant Marchant, M.D., observed that Ms. McQueen had
decreased range of motion in the cervical spine, diffuse
tenderness to palpation in myofascial regions from the
cervical spine to her trapezius along her rhomboids and into
her shoulder bilaterally, decreased bilateral forward flexion
and rotation, 4 internal rotation strength in the left
shoulder, significant diffuse tenderness to palpation over
joint of the shoulders bilaterally, and pain with ranges of
motion. Tr. 709-10. Dr. Marchant also found Ms. McQueen could
lift and carry up to five pounds frequently, up to 10 pounds
occasionally, and seldom lift and carry up to 25 pounds; sit
four hours total; stand two hours total; walk two hours
total; occasionally bend and squat; seldom kneel, crawl,
climb; and never reach above shoulder level. Tr. 743.
regard to the ALJ's assessment of Dr. Marchant's
opinion, this Court previously held:
The ALJ's residual functional capacity ("RFC")
conflicts with the opinion from Dr. Marchant in a number of
ways, including the ALJ's finding that plaintiff could
stand and walk for about six hours and sit for about six
hours, and also that she occasionally could reach overhead
with both upper extremities (see AR. 23). As noted, Dr.
Marchant opined that plaintiff never could reach above
shoulder level (AR. 743). Tr. 1131.
the remand hearing, the ALJ specifically addressed Dr.
Marchant's opinion. The ALJ's treatment of that