Mackey v. Colvin
| Decision Date | 10 May 2013 |
| Docket Number | CASE NO. 12-cv-05664 JRC |
| Court | U.S. District Court — Western District of Washington |
| Parties | TONYA MACKEY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. |
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 3; Consent to Proceed Before a United States Magistrate Judge, ECF No. 5). This matter has been fully briefed (see ECF Nos. 13, 16, 17).
After considering and reviewing the record, the Court finds that plaintiff's severe obesity and depression, along with her other non-severe impairments and resulting limitations, did not render plaintiff unable to perform her past relevant work or unable to perform work existing in the national economy. The decision that plaintiff was not disabled is supported by substantial evidence in the record as a whole.
Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
Plaintiff, TONYA MACKEY, was born in April, 1975 and was 31 years old on her alleged date of disability onset of January 1, 2007 (see Tr. 126-27, 149). She has past relevant work experience as a substitute ASL interpreter, a bow maker (Christmas decorations), a telemarketer, a caregiver, and an assistant retail store manager (Tr. 29, 161). She received her GED, and has attended a community college (Tr. 45-46). Plaintiff testified that she is close to obtaining her associates' degree (see Tr. 45).
Plaintiff has at least the severe impairments of obesity and a depressive disorder (20 CFR § 404.1520(c)) (Tr. 18). During the relevant period of time, plaintiff reported weighing approximately 450 pounds, and she testified at her hearing (after her date last insured) that she weighed 560 pounds (see Tr. 46-47, 50-51, 153). Plaintiff is six feet tall (see Tr. 46).
At the time of the hearing, plaintiff was married and living with her husband. They have no children (Tr. 47).
Plaintiff filed an application for Disability Insurance Benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 423 (Tr. 126-27). Her application was denied initially in March, 2009 and following reconsideration in May, 2009 (Tr. 72-77).
Although a different Administrative Law Judge was assigned to plaintiff's case when her application was filed initially, plaintiff's requested hearing was held before Administrative Law Judge Verrell Dethloff ("the ALJ") on March 14, 2011 (Tr. 42-62). On April 6, 2011, the ALJ issued a written decision in which he concluded that plaintiff was not disabled pursuant to the Social Security Act (Tr. 12-38).
On June 19, 2012, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-6). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court in July, 2012 seeking judicial review of the ALJ's written decision (see ECF No. 1). Defendant filed the sealed administrative record regarding this matter ("Tr.") on October 1, 2012 (see ECF Nos. 10, 11).
In her Opening Brief, plaintiff raises the following issues: (1) Whether or not the ALJ failed to fully and fairly develop the evidence of record; (2) Whether or not the ALJ failed to give proper consideration to the opinions expressed by Dr. Krebs, an examining psychologist; (3) Whether or not the ALJ failed to give proper consideration to the testimony of plaintiff and the third party statement of her husband; (4) Whether or not the ALJ's medical-vocational analysis at step 4 constitutes reversible error; (5) Whether or not the ALJ erred when he relied on the Medical-Vocational Guidelines to deny benefitsat step 5 despite the presence of an alleged severe psychiatric impairment and other severe nonexertional impairment; and (6) Whether or not the ALJ's failure to consider arthritis of the neck, low back, and left knee as severe impairments at step 2 is reversible error (see ECF No. 13, p. 11).
Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a 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). Plaintiff is disabled under the Act only if plaintiff's impairments are of such severity that plaintiff is unable to do previous work, and cannot, considering plaintiff's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "'review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (1996) (per curiam) (quoting Andrews, supra, 53 F.3d at 1039). In addition, the Court must determine independently whether or not "'the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) (citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1226-27 (9th Cir. 2009) (); see also Molina v. Astrue, 674 F.3d 1104, 1121, 2012 U.S. App. LEXIS 6570 at *42 (9th Cir. 2012); Stout v. Commissioner of Soc. Sec., 454 F.3d 1050, 1054 (9th Cir. 2006) () (citations omitted). For example, "the ALJ, not thedistrict court, is required to provide specific reasons for rejecting lay testimony." Stout, supra, 454 F.3d at 1054 (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d 1104, 2012 U.S. App. LEXIS 6570 at *24-*26, *32-*36, *45-*46; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009); Stout, supra, 454 F.3d at 1054-55.
Here, the ALJ found that plaintiff suffered from the severe impairments of obesity and a depressive disorder (Tr. 18). Plaintiff complains that the ALJ erred in failing to find that her arthritis of the neck, low back, and left knee were severe impairments at step two of the sequential disability evaluation process (see Opening Brief, ECF No. 13, pp. 17-18). Regarding these impairments, the ALJ included the following in his written decision:
[Plaintiff] said that she had neck and back pain and stiffness, and sometimes used a cane. She has attributed knee, neck, and low back pain that she attributed to arthritis. The claimant has findings of only mild lumbar degenerative changes, and mild osteoarthritic changes of the left knee (internal citation to exhibit 10F). These findings are not particularly severe; the claimant has presented at examination with normal gait, and normal range of motion and motor strength (internal citation to exhibits 2F; 3F; 15F:4-7; 15F), and has denied any pain (internal citation to exhibit 15:4). These impairments are also not severe.
(Tr. 19 (internal footnotes omitted)).
Step-two of the administration's evaluation process requires the ALJ to determine whether or not the claimant "has a medically severe impairment or combination of impairments." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted); 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). An impairment is "not severe" if it does not "significantly limit" the ability to conduct basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are "abilities and aptitudes necessary to do most jobs," including, for example, "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or...
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