United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY
Van Sickle Senior United States District Judge
THE COURT are the parties' cross motions for summary
judgment. ECF Nos. 14 and 18. This matter was submitted for
consideration without oral argument. The plaintiff is
represented by Attorney Jeffrey Schwab. The defendant is
represented by Special Assistant United States Attorney
Daphne Banay. The Court has reviewed the administrative
record and the parties' completed briefing and is fully
informed. For the reasons discussed below, the court
GRANTS Defendant's Motion for Summary
Judgment, ECF No. 18, and DENIES
Plaintiff's Motion for Summary Judgment, ECF No. 14.
Lisa Marie McCullough protectively filed for supplemental
security income and disability insurance benefits on March
26, 2012. Tr. 286-94. Plaintiff alleged an onset date of
August 1, 2010, which was amended at the first hearing to
February 1, 2012. Tr. 35, 286, 289. Benefits were denied
initially (Tr. 170-85) and upon reconsideration (Tr.
188-200). Plaintiff requested a hearing before an
administrative law judge (“ALJ”), which was held
before ALJ Marie Palachuk on November 14, 2013. Tr. 32-72.
Plaintiff was represented by counsel and testified at the
hearing. Id. The ALJ denied benefits (Tr. 142-63);
but on May 6, 2015, the Appeals Council vacated the decision
and remanded the case for further proceedings (Tr. 164-69).
Plaintiff subsequently appeared for a hearing before ALJ
Marie Palachuk on October 7, 2015. Tr. 73-103. Plaintiff was
represented by counsel and testified at the hearing.
Id. The ALJ denied benefits (Tr. 9-31), and the
Appeals Council denied review. Tr. 1. The matter is now
before this court pursuant to 42 U.S.C. §§ 405(g);
facts of the case are set forth in the administrative hearing
and transcripts, the ALJ's decision, and the briefs of
Plaintiff and the Commissioner, and will therefore only the
most pertinent facts are summarized here.
Marie McCullough (“Plaintiff”) was 41 years old
at the time of the first hearing. Tr. 37. She attended
community college, but did not complete the two year degree.
Tr. 38-42. In 1988, Plaintiff lives with her ex-boyfriend,
and has three children all over the age of 18 that do not
live with her. Tr. 46, 53. She was incarcerated previously,
and reported she was released in 2001 and then in 2004. Tr.
50-52. Plaintiff has work history as a general clerk,
waitress, bartender, cashier, and retail sales clerk. Tr.
37-38, 59, 69-70. Plaintiff testified that she stopped
working and going to school because of an increase in
symptoms from her seizures and the migraines, and sexual
harassment in the workplace. Tr. 38-42, 48.
testified that when she left school she was having at least
one seizure a day, and grand mal seizures two or three times
a week. Tr. 43-44. At the second hearing, it was noted that
Plaintiff was off seizure medication, and the medical expert
testified she was seizure free. Tr. 78, 81, 96. Plaintiff
testified that she has migraines daily, and at least once a
week has a migraine so severe that she has to go into dark
room for 12-14 hours because she “can't handle the
lights and the noise.” Tr. 47-48, 91-92. She reported
suffering from anxiety and was put on medication but stopped
due to side effects. Tr. 54-55. At the second hearing,
Plaintiff testified that she was using a walker for her
fibromyalgia and “falling over” which was
happening at least twice a day. Tr. 90. On a “normal
day, ” Plaintiff reported at the first hearing that she
watches television, tries to do laundry and clean, cooks only
in the microwave, and sews quilts; and at the second hearing
she testified that she watches television, cleans the
bathroom and does dishes, does some grocery shopping with a
friend, and tries to do an adult coloring book. Tr. 51-52,
95-96. Plaintiff alleged disability due to seizures,
migraines, asthma, and diabetes. See Tr. 170, 188.
district court's review of a final decision of the
Commissioner of Social Security is governed by 42 U.S.C.
§ 405(g). The scope of review under § 405(g) is
limited; the Commissioner's decision will be disturbed
“only if it is not supported by substantial evidence or
is based on legal error.” Hill v. Astrue, 698
F.3d 1153, 1158 (9th Cir. 2012). “Substantial
evidence” means “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.” Id. at 1159 (quotation and
citation omitted). Stated differently, substantial evidence
equates to “more than a mere scintilla[, ] but less
than a preponderance.” Id. (quotation and
citation omitted). In determining whether the standard has
been satisfied, a reviewing court must consider the entire
record as a whole rather than searching for supporting
evidence in isolation. Id.
reviewing a denial of benefits, a district court may not
substitute its judgment for that of the Commissioner. If the
evidence in the record “is susceptible to more than one
rational interpretation, [the court] must uphold the
ALJ's findings if they are supported by inferences
reasonably drawn from the record.” Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a
district court “may not reverse an ALJ's decision
on account of an error that is harmless.” Id.
An error is harmless “where it is inconsequential to
the [ALJ's] ultimate nondisability determination.”
Id. at 1115 (quotation and citation omitted). The
party appealing the ALJ's decision generally bears the
burden of establishing that it was harmed. Shinseki v.
Sanders, 556 U.S. 396, 409-10 (2009).
SEQUENTIAL EVALUATION PROCESS
claimant must satisfy two conditions to be considered
“disabled” within the meaning of the Social
Security Act. First, the claimant must be “unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. §§ 423(d)(1)(A);
1382c(a)(3)(A). Second, the claimant's impairment must be
“of such severity that she is not only unable to do his
previous work[, ] but cannot, considering [his or her] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.” 42 U.S.C. §§ 423(d)(2)(A);
Commissioner has established a five-step sequential analysis
to determine whether a claimant satisfies the above criteria.
See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v);
416.920(a)(4)(i)-(v). At step one, the Commissioner considers
the claimant's work activity. 20 C.F.R. §§
404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is
engaged in “substantial gainful activity, ” the
Commissioner must find that the claimant is not disabled. 20
C.F.R. §§ 404.1520(b); 416.920(b).
claimant is not engaged in substantial gainful activity, the
analysis proceeds to step two. At this step, the Commissioner
considers the severity of the claimant's impairment. 20
C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If
the claimant suffers from “any impairment or
combination of impairments which significantly limits [his or
her] physical or mental ability to do basic work activities,
” the analysis proceeds to step three. 20 C.F.R.
§§ 404.1520(c); 416.920(c). If the claimant's
impairment does not satisfy this severity threshold, however,
the Commissioner must find that the claimant is not disabled.
20 C.F.R. §§ 404.1520(c); 416.920(c).
three, the Commissioner compares the claimant's
impairment to severe impairments recognized by the
Commissioner to be so severe as to preclude a person from
engaging in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the
impairment is as severe or more severe than one of the
enumerated impairments, the Commissioner must find the
claimant disabled and award benefits. 20 C.F.R. §§
severity of the claimant's impairment does not meet or
exceed the severity of the enumerated impairments, the
Commissioner must pause to assess the claimant's
“residual functional capacity.” Residual
functional capacity (RFC), defined generally as the
claimant's ability to perform physical and mental work
activities on a sustained basis despite his or her
limitations, 20 C.F.R. §§ 404.1545(a)(1);
416.945(a)(1), is relevant to both the fourth and fifth steps
of the analysis.
four, the Commissioner considers whether, in view of the
claimant's RFC, the claimant is capable of performing
work that he or she has performed in the past (past relevant
work). 20 C.F.R. §§ 404.1520(a)(4)(iv);
416.920(a)(4)(iv). If the claimant is capable of performing
past relevant work, the Commissioner must find that the
claimant is not disabled. 20 C.F.R. §§ ...