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McQueen v. Berryhill

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

February 27, 2018

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



         Deborah 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.


         Ms. 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.

         The 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.

         Utilizing the five-step disability evaluation process, [1] 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.[2] Tr. 20-23. These findings were not disturbed on appeal and were not revisited on remand.

         At step 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.

         With 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.


         A. The ALJ's Assessment of Dr. Marchant's Opinion

         On 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.

         With 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.

         After the remand hearing, the ALJ specifically addressed Dr. Marchant's opinion. The ALJ's treatment of that ...

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