United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
T. RODGERS, UNITED STATES MAGISTRATE JUDGE
THE COURT are cross-motions for summary judgment.
ECF Nos. 22, 23. Attorney Cathy M. Helman represents Jason F.
(Plaintiff); Special Assistant United States Attorney Justin
L. Martin represents the Commissioner of Social Security
(Defendant). The parties have consented to proceed before a
magistrate judge. ECF No. 4. After reviewing the
administrative record and briefs filed by the parties, the
Court GRANTS Defendant's Motion for
Summary Judgment and DENIES Plaintiff's
Motion for Summary Judgment.
filed applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB) on December 3, 2013, Tr.
144-45, alleging disability since July 15, 2008, Tr. 310,
312, due to a ruptured disc, anxiety, and mental problems,
Tr. 391. The applications were denied initially and upon
reconsideration. Tr. 204-07, 209-12. Administrative Law Judge
(ALJ) Marie Palachuk held a hearing on January 21, 2016 and
heard testimony from Plaintiff, psychological expert Nancy
Lynn Winfrey, Ph.D., medical expert Allan N. Levine, M.D.,
and vocational expert Daniel McKinney. Tr. 47-95. The ALJ
issued an unfavorable decision on February 17, 2016. Tr.
23-37. The Appeals Council denied review on April 27, 2017.
Tr. 1-6. The ALJ's February 17, 2016 decision became the
final decision of the Commissioner, which is appealable to
the district court pursuant to 42 U.S.C. §§ 405(g),
1383(c). Plaintiff filed this action for judicial review on
June 20, 2017. ECF Nos. 1, 7.
facts of the case are set forth in the administrative hearing
transcript, the ALJ's decision, and the briefs of the
parties. They are only briefly summarized here.
was 31 years old at the alleged date of onset. Tr. 310. His
highest level of education was the tenth grade. Tr. 392, 645.
He reported his work history as cashier, cook, customer
service representative, security guard, and test driver. Tr.
392, 398. Plaintiff reported that he stopped working on
September 15, 2012 due to his conditions. Tr. 391.
is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). The Court reviews the ALJ's determinations of law
de novo, deferring to a reasonable interpretation of the
statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th
Cir. 2000). The decision of the ALJ may be reversed only if
it is not supported by substantial evidence or if it is based
on legal error. Tackett v. Apfel, 180 F.3d 1094,
1097 (9th Cir. 1999). Substantial evidence is defined as
being more than a mere scintilla, but less than a
preponderance. Id. at 1098. Put another way,
substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971). If the evidence is susceptible to more than one
rational interpretation, the court may not substitute its
judgment for that of the ALJ. Tackett, 180 F.3d at
substantial evidence supports the administrative findings, or
if conflicting evidence supports a finding of either
disability or non-disability, the ALJ's determination is
conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30
(9th Cir. 1987). Nevertheless, a decision supported by
substantial evidence will be set aside if the proper legal
standards were not applied in weighing the evidence and
making the decision. Brawner v. Secretary of Health and
Human Services, 839 F.2d 432, 433 (9th Cir. 1988).
Commissioner has established a five-step sequential
evaluation process for determining whether a person is
disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a);
see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
In steps one through four, the burden of proof rests upon the
claimant to establish a prima facie case of entitlement to
disability benefits. Tackett, 180 F.3d at 1098-99.
This burden is met once the claimant establishes that
physical or mental impairments prevent him from engaging in
his previous occupations. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his
past relevant work, the ALJ proceeds to step five, and the
burden shifts to the Commissioner to show that (1) the
claimant can make an adjustment to other work, and (2)
specific jobs which the claimant can perform exist in the
national economy. Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the
claimant cannot make an adjustment to other work in the
national economy, a finding of “disabled” is
made. 20 C.F.R. §§ 404.1520(a)(4)(v),
February 17, 2016, the ALJ issued a decision finding
Plaintiff was not disabled as defined in the Social Security
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since July 15, 2008, the alleged date of
onset. Tr. 25.
two, the ALJ determined Plaintiff had the following severe
impairments: chronic back pain secondary to multilevel
degenerative disc disease; morbid obesity; major depressive
disorder; and generalized anxiety disorder. Tr. 26.
three, the ALJ found Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. Tr. 26.
four, the ALJ assessed Plaintiff's residual function
capacity and determined he could perform a range of light
work with the following limitations:
the claimant is limited to lifting/carrying a maximum of 15
pounds and standing/walking limited to 30 minutes at a time
for a total of five hours per day (requiring the ability to
alternate sitting/standing at 30 minute intervals). The
claimant is limited to occasional postural activities with
the exception of no climbing of ladders, ropes and scaffolds;
avoid concentrated exposure to extreme cold and all exposure
to hazards such as dangerous moving machinery and unprotected
heights. The claimant is able to maintain
attention/concentration for two-hour intervals during a
regular 40-hour workweek; no production rate (fast-paced
assembly-type work); no high pressure/confrontation type job
(e.g., customer service/disputes, collection, etc.); no
crowds; only occasional interaction with
Tr. 28. The ALJ identified Plaintiff's past relevant work
as store cashier, laborer stores, electronics tester, cook
helper, hand packager, and customer-service clerk (CST) and
concluded that Plaintiff was not able to perform this past
relevant work. Tr. 35.
five, the ALJ determined that, considering Plaintiff's
age, education, work experience and residual functional
capacity, and based on the testimony of the vocational
expert, there were other jobs that exist in significant
numbers in the national economy Plaintiff could perform,
including the jobs of bagger, garment sorter, and table
worker. Tr. 36. The ALJ concluded Plaintiff was not under a
disability within the meaning of the Social Security Act at
any time from July 15, 2008, through the date of the
ALJ's decision. Tr. 37.
question presented is whether substantial evidence supports
the ALJ's decision denying benefits and, if so, whether
that decision is based on proper legal standards. Plaintiff
contends the ALJ erred by (1) failing to properly weigh the
opinion evidence, (2) failing to properly address
Plaintiff's symptom statements, and (3) failing to make a
proper step five determination.
argues that the ALJ failed to properly consider and weigh the
opinions expressed by William M. Shanks, M.D., Benjamin W.
Simpson, M.D., Wilfred Madarang, M.D., Mahlon Dalley, Ph.D.,
Frank Rosekrans, Ph.D., Jay M. Toews, Ed.D., Nancy Lynn
Winfrey, Ph.D., Allan N. Levine, M.D., and Helen Franklin.
ECF No. 14 at 22 at 12-20.
weighing medical source opinions, the ALJ should distinguish
between three different types of physicians: (1) treating
physicians, who actually treat the claimant; (2) examining
physicians, who examine but do not treat the claimant; and,
(3) nonexamining physicians who neither treat nor examine the
claimant. Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995). The ALJ should give more weight to the opinion of
a treating physician than to the opinion of an examining
physician. Orn v. Astrue, 495 F.3d 625, 631 (9th
Cir. 2007). Likewise, the ALJ should give more weight to the
opinion of an examining physician than to the opinion of a
nonexamining physician. Id.
treating physician's opinion is not contradicted by
another physician, the ALJ may reject the opinion only for
“clear and convincing” reasons. Baxter v.
Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a
treating physician's opinion is contradicted by another
physician, the ALJ is only required to provide
“specific and legitimate reasons” for rejecting
the opinion. Murray v. Heckler, 722 F.2d 499, 502
(9th Cir. 1983). Likewise, when an examining physician's
opinion is not contradicted by another physician, the ALJ may
reject the opinion only for “clear and
convincing” reasons, and when an examining
physician's opinion is contradicted by another physician,
the ALJ is only required to provide “specific and
legitimate reasons” to reject the opinion.
Lester, 81 F.3d at 830-31.
specific and legitimate standard can be met by the ALJ
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating her interpretation
thereof, and making findings. Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do
more than offer her conclusions, she “must set forth
[her] interpretations and explain why they, rather than the
doctors', are correct.” Embrey v. Bowen,
849 F.2d 418, 421-422 (9th Cir. 1988).
William M. Shanks, M.D.
12, 2012, Dr. Shanks completed an examination of Plaintiff at
the request of the Washington Department of Social and Health
Services (DSHS) and diagnosed Plaintiff with widespread
degenerative disk disease of the lumbar spine with facet
joint arthritis and a history of left lateral disc herniation
at the LS level, status post-op discectomy at this level. Tr.
582-85. Dr. Shanks completed his evaluation with the
He has no training in a sedentary level occupation, except
for that which he did in a call center several years ago. He
would not be able to return to the heavier types of work he
has done in the past. He therefore ...