Kelley v. Colvin

• Decision Date: 18 December 2013
• Docket Number: No. 12-cv-466-JPH,12-cv-466-JPH
• Court: U.S. District Court — District of Washington
• Parties: JULIE ANN KELLEY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

JULIE ANN KELLEY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

No. 12-cv-466-JPH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

DATED: December 18, 2013

ORDER ON SUMMARY

JUDGMENT

BEFORE THE COURT are cross-motions for summary judgment. ECF No. 16, 19. The parties have consented to proceed before a magistrate judge. ECF No. 4. After reviewing the administrative record and the parties' briefs, the court grants defendant's motion for summary judgment, ECF No. 19.

JURISDICTION

Kelley protectively applied for disability insurance benefits (DIB) and supplemental security income (SSI) on January 9, 2008. She alleged disabilitybeginning February 1, 2007 (DIB: Tr. 121-28; SSI: Tr. 129-35). Benefits were denied initially and on reconsideration (Tr. 60-63, 67-68). ALJ Louis J. Volz, III held a hearing September 24, 2010 (Tr. 41-55) and issued an unfavorable decision November 9, 2010 (Tr. 22-34). On May 22, 2012 the Appeals Council denied review (Tr. 1-5). The matter is now before the Court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review July 13, 2012. ECF No. 1, 6.

STATEMENT OF FACTS

The facts have been presented in the administrative hearing transcript, the ALJ's decision and the briefs of the parties. They are only briefly summarized as necessary to explain the court's decision.

Kelley was 41 years old at onset and 45 at the hearing. She earned a GED and has worked as a housekeeper and fast food worker (Tr. 47, 137, 157, 161). She alleged disability based on physical and mental limitations, but this appeal is limited to the ALJ's assessment of mental limitations. ECF No. 16 at 8-9. Kelley testified she was fired from her last job in January 2005 after she was caught talking about her boss. She testified substance abuse has been in remission since August 24, 2009. She has severe depression and bipolar disorder, and it bothers her to be around people. When she applied for benefits Kelley alleged her mental impairments are bipolar disorder and ADHD (Tr. 43, 47-48, 51, 156).

SEQUENTIAL EVALUATION PROCESS

The Social Security Act (the Act) defines disability as the "inability 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). The Act also provides that a plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423 (d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9^th Cir. 2001).

The Commissioner has established a five-step sequential evaluation process or determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If plaintiff does not have a severeimpairment or combination of impairments, the disability claim is denied.

If the impairment is severe, the evaluation proceeds to the third step, which compares plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. §404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work, that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff's residual capacity (RFC) is considered. If plaintiff cannot perform past relevant work, the fifth and final step in the process determines whether plaintiff is able to perform other work in the national economy in view of plaintiff's residual functional capacity, age, education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9^th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9^th Cir. 1999). The initial burden ismet once plaintiff establishes that a physical or mental impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" which plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9^th Cir. 1984).

Plaintiff has the burden of showing that drug and alcohol addiction (DAA) is not a contributing factor material to disability. Ball v. Massanari, 254 F.2d 817, 823 (9^th Cir. 2001). The Social Security Act bars payment of benefits when drug addiction and/or alcoholism is a contributing factor material to a disability claim. 42 U.S.C. §§ 423 (d)(2)(C) and 1382(a)(3)(J); Bustamante v. Massanari, 262 F.3d 949 (9^th Cir. 2001); Sousa v. Callahan, 143 F.3d 1240, 1245 (9^th Cir. 1998). If there is evidence of DAA and the individual succeeds in proving disability, the Commissioner must determine whether DAA is material to the determination of disability. 20 C.F.R. §§ 404.1535 and 416.935. If an ALJ finds that the claimant is not disabled, then the claimant is not entitled to benefits and there is no need to proceed with the analysis to determine whether substance abuse is a contributing factor material to disability. However, if the ALJ finds that the claimant is disabled, then the ALJ must proceed to determine if the claimant would be disabled if he or she stopped using alcohol or drugs.

STANDARD OF REVIEW

Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9^th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9^th Cir. 1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9^th Cir. 1983) (citing 42 U.S.C. § 405(g). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9^th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9^th Cir. 1989). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)(citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9^th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9^th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9^th Cir. 1980).

It is the role of the trier of fact, not this Court, to resolve conflicts inevidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9^th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still 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 (9^th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9^th Cir. 1987).

ALJ'S FINDINGS

ALJ Volz found Kelley was insured through September 30, 2010 (Tr. 22, 24). At step one, he found Kelley did not work at SGA levels after onset (Tr. 24). At steps two and three, he found Kelley suffers from COPD, attention deficit hyperactivity disorder (ADHD) and borderline personality disorder, impairments that are severe but do not meet or medically equal the severity of a listed impairment (Tr. 24, 26). He found Kelley less than fully credible (Tr. 29). The ALJ opined she could physically perform the full range of light work. Mental limitations include the ability to understand and complete one and two-step instructions, carry out superficial tasks and those involving minimal contact withothers (Tr. 31, 33). At step four ALJ Volz found Kelley is able to perform her past relevant work as a housekeeper (Tr. 32). Accordingly, the ALJ found Kelley has not been disabled from onset through the date of the decision, November 9, 2010 (Tr. 33-34).

ISSUES

Kelley alleges the ALJ erred when he analyzed the evidence of mental limitations. ECF No. 16 at 8-14. The...