United States District Court, E.D. Washington
ALEXANDER C. II, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
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. 13 and 14. This matter was submitted for
consideration without oral argument. The plaintiff is
represented by Attorney D. James Tree. The defendant is
represented by Special Assistant United States Attorney
Jeffrey R. McClain. 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. 14, and DENIES
Plaintiff's Motion for Summary Judgment, ECF No. 13.
Alexander Cole II protectively filed for supplemental
security income on February 15, 2008, alleging an onset date
of January 1, 1996. Tr. 113. Benefits were denied initially
(Tr. 74-77) and upon reconsideration (Tr. 81-84). Plaintiff
requested a hearing before an administrative law judge
(“ALJ”), which was held before ALJ James W.
Sherry on January 6, 2010. Tr. 39-71. Plaintiff was
represented by counsel and testified at the hearing.
Id. On February 11, 2010 the ALJ denied benefits.
Tr. 10-27. On June 1, 2012, the United States District Court
for the Eastern District of Washington granted
Plaintiff's motion and remanded the case for further
proceedings. Tr. 849-82. Plaintiff subsequently appeared for
a hearings before ALJ Larry Kennedy on November 12, 2015 and
May 19, 2016. Tr. 740-825. Plaintiff was represented by
counsel and testified at the hearings via telephone from
Airway Heights Correctional Facility. Id. The ALJ
denied benefits on October 28, 2016. Tr. 668-702. The matter
is now before this court pursuant to 42 U.S.C. §
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.
Cole II (“Plaintiff”) was 34 years old at the
time of the hearing in November 2015. Tr. 766. He testified
that he finished the eleventh grade, and was in special
education for all of his classes since the first grade. Tr.
766-67. Plaintiff reports a history of childhood abuse. Tr.
714-15. He has no work history. Tr. 713, 757. Plaintiff
appeared for the hearings in November 2015 and May 2016 via
telephone from Airway Heights Correctional Facility. Tr. 744.
He testified that he worked for three to six hours in the
kitchen while incarcerated. Tr. 760. Prior to being
incarcerated, Plaintiff reported that he was undergoing
treatment for schizophrenia and did not use drugs except for
marijuana. Tr. 759, 763-65. Plaintiff testified that he
couldn't work because he has no work history, did not
graduate from high school, has a criminal history, and has
nerve damage in his back that prevents him from lifting over
50 pounds. Tr. 761-63.
alleges disability due to psychosis, antisocial personality
disorder, depression, obsessive-compulsive disorder, nerve
damage in his back, and ADHD. See Tr. 126, 681. As
noted by the ALJ, and reflected in the longitudinal record,
Plaintiff has an extensive history of polysubstance abuse,
during which he displays “altered mental status,
worsening psychosis, uncooperative behavior, and significant
deterioration in overall mental functioning.” Tr. 682.
Over the course of the record, Plaintiff has been diagnosed,
at varying points in time, with adjustment disorder;
depression; antisocial personality disorder; rule-out
learning disorder; rule-out cognitive disorder; psychotic
disorder NOS; substance use dependency/disorder
(methamphetamine, alcohol, cannabis); obsessive compulsive
disorder, and malingering. See Tr. 318, 640, 683-92,
1517, 1601, 1605-07, 1759. However, the record does not
include any documented mental health treatment since mid-
2013, and jail records from February 2015 through March 2016
indicate Plaintiff was only treated for physical problems.
See Tr. 1764, 2085, 2094-125, 2137-144.
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. § 1382c(a)(3)(A).
Second, the claimant's impairment must be “of such
severity that he 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. § 1382c(a)(3)(B).
Commissioner has established a five-step sequential analysis
to determine whether a claimant satisfies the above criteria.
See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step
one, the Commissioner considers the claimant's work
activity. 20 C.F.R. § 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. § 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. § 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. § 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. § 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. §
416.920(a)(4)(iii). If the impairment is as severe or more
severe than one of the enumerated impairments, the