Ortega v. Colvin
| Decision Date | 27 May 2014 |
| Docket Number | Case No. 13–CV–03078–VEB. |
| Citation | 31 F.Supp.3d 1204 |
| Court | U.S. District Court — District of Washington |
| Parties | David ORTEGA, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant. |
D. James Tree, D. James Tree Law Office, Yakima, WA, for Plaintiff.
Pamela Jean Derusha, U.S. Attorney's Office, Spokane, WA, Catherine Escobar, Social Security Administration, Seattle, WA, for Defendant.
DECISION AND ORDER
In July of 2009, Plaintiff Daniel Ortega applied for Supplemental Security Income (“SSI”) benefits under the Social Security Act. The Commissioner of Social Security denied the application.
Plaintiff, represented by D. James Tree, Esq., commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties consented to the jurisdiction of a United States Magistrate Judge. (Docket No. 7).
On April 2, 2014, the Honorable Rosanna Malouf Peterson, Chief United States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 23).
The procedural history may be summarized as follows:
On July 29, 2009, Plaintiff applied for SSI benefits, alleging disability beginning May 28, 2007. (T at 21, 141–45).1 The application was denied initially and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On August 2, 2011, a hearing was held before ALJ James Sherry. (T at 37). Plaintiff appeared with an attorney and testified. (T at 42–62). The ALJ also received testimony from Thomas Polsin, a vocational expert. (T at 62–70).
On November 3, 2011, the ALJ issued a written decision denying the application for benefits and finding that Plaintiff was not disabled within the meaning of the Social Security Act. (T at 18–36). The ALJ's decision became the Commissioner's final decision on May 31, 2013, when the Social Security Appeals Council denied Plaintiff's request for review. (T at 1–8).
On July 29, 2013, Plaintiff, acting by and through his counsel, timely commenced this action by filing a Complaint in the United States District Court for the Eastern District of Washington. (Docket No. 5). The Commissioner interposed an Answer on December 6, 2013. (Docket No. 12).
Plaintiff filed a motion for summary judgment on February 18, 2014. (Docket No. 21). The Commissioner moved for summary judgment on March 31, 2014. (Docket No. 22). Plaintiff filed a reply memorandum of law on April 15, 2014. (Docket No. 24). As noted above, the parties consented to the jurisdiction of a Magistrate Judge. (Docket No. 7).
For the reasons set forth below, the Commissioner's motion is granted, Plaintiff's motion is denied, and this case is closed.
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 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 (9th Cir.2001).
The Commissioner has established a five-step sequential evaluation process for 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 medially 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 severe impairment 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. Pt. 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 functional 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, 107 S.Ct. 2287, 96 L.Ed.2d 119 (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 (9th Cir.1971) ; Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999). The initial burden is met once plaintiff establishes that a mental or physical 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” that plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984).
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold a 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 (9th Cir.1985) ; Tackett v. Apfel, 180 F.3d 1094, 1097 (9th 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 (9th 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 (9th Cir.1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601–02 (9th 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citations omitted). “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th 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 (9th Cir.1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir.1980) ).
It is the role of the Commissioner, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400, 91 S.Ct. 1420. 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 (9th 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 (9th Cir.1988). 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, 1229–30 (9th Cir.1987).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since July 29, 2009, the application date. (T at 23). The ALJ determined that Plaintiff's thoracic and lumbar degenerative disc disease
; polyarthralgias, myofascial pain, AC joint degenerative joint disease, lumbalgia/sacroiliac dysfunction, obstructive sleep apnea, and left knee torn meniscus were “severe” impairments under the Act. (Tr. 23–24).
However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in the Listings. (T at 24–25). The ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b), except that he could never climb ladders, ropes or scaffolds; occasionally climb ramps or stairs, balance, stoop, crouch, kneel, or crawl; occasionally reach overhead with his right, upper extremity; and must avoid concentrated exposure to extreme cold, excessive vibration, unprotected heights, and moving machinery; and cannot drive commercially. (T at 25–29).
The ALJ found that Plaintiff could not perform his past relevant work as a window installer, material handler, or construction laborer. (T at 29). However, considering Plaintiff's age (52 years old on the application date),...
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