Reid v. Colvin, CASE NO. 12-cv-05709 JRC

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtJ. Richard Creatura
Docket NumberCASE NO. 12-cv-05709 JRC
PartiesMARK A. REID, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
Decision Date30 September 2013

MARK A. REID, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the
Social Security Administration, Defendant.

CASE NO. 12-cv-05709 JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Dated: September 30, 2013


ORDER ON PLAINTIFF'S
COMPLAINT

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. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed (see ECF Nos. 15, 16, 17).

After considering and reviewing the record, the Court finds that the ALJ evaluated a number of plaintiff's claimed ailments and concluded that plaintiff still was capable of

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substantial gainful activity. This conclusion is supported by substantial evidence in the record and any errors in the ALJ's findings are harmless. Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff, MARK A. REID, was born in 1968 and was thirty-nine years old on the alleged date of disability onset of December 13, 2007 (see Tr. 135, 142). Plaintiff obtained his GED after dropping out of school in the ninth grade (Tr. 45). He had approximately one month of computer repair training through Portland Community College (Tr. 45-46). Plaintiff's last job was testing salvaged RV appliances at an RV Salvage and Sales. He worked there for over a year, but when his tardiness got worse, he was told not to come in to work (Tr. 46-47).

Plaintiff has at least the severe impairments of Chronic Fatigue Syndrome, Fibromyalgia, rule out Somatization Disorder, and rule out Adjustment Disorder with Depressed Mood (20 CFR 404.1520(c) and 416.920(c)) (Tr. 23).

At the time of the hearing, plaintiff was living alone in an RV on a friend's property (Tr. 45).

PROCEDURAL HISTORY

Plaintiff protectively filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act on March 26, 2010 (see Tr. 135-145). The applications were denied initially and following reconsideration (Tr. 73-75). Plaintiff's requested hearing was held before Administrative

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Law Judge Mattie Harvin-Woode ("the ALJ") on October 12, 2011 (see Tr. 39-71). On October 28, 2011, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see Tr.20-34).

On July 26, 2013, 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. 1-3). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in August, 2012 (see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on November 13, 2012 (see ECF Nos. 12, 13).

In plaintiff's Opening Brief, plaintiff raises the following issues: (1) whether or not the ALJ's residual functional capacity assessment was complete, in light of the limitations identified by Dr. Clifford and Dr. Krueger, whose opinions she gave "great weight"; (2) whether or not the ALJ's residual functional capacity assessment was complete, absent limitations related to Mr. Reid's Chronic Fatigue Syndrome; (3) whether or not the ALJ provided legitimate reasons for rejecting the opinions of plaintiff's treating physician, Dr. Green, his treating ARNP, Connie Hoskins, and his treating PA-C, Bonnie Anderson; (4) whether or not the ALJ's Step 2 finding that plaintiff's cervical spine stenosis was non-severe applied the correct legal standard, and whether she was permitted to simply ignore his diagnoses of Irritable Bowel Syndrome (IBS) and Anorexia; (5) whether or not the ALJ's adverse credibility analysis was legally adequate; (6) whether or not the jobs identified by the VE were consistent with the Dictionary of Occupational Titles and the ALJ's hypothetical questions; and (7) whether

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or not this case should be remanded for payment of benefits, rather than further administrative proceedings (see ECF No. 15, p. 2).

STANDARD OF REVIEW

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). 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

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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) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); 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) ("we cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision") (citations omitted). 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.

DISCUSSION

1. Whether or not the ALJ's residual functional capacity assessment was complete, in light of the limitations identified by Dr. Clifford and Dr. Krueger, whose opinions she gave "great weight."

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The ALJ found that plaintiff was capable of performing light work as that is defined in 20 CFR 404.1567(b) and 416.967(b) (Tr. 26). This is referred to as plaintiff's residual functional capacity ("RFC"). A determination regarding RFC "'is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.'" Brown v. Astrue, 405 Fed. Appx. 230, 233, 2010 U.S. App. LEXIS 26760 at **6 (9th Cir. 2010) (per curiam) (unpublished opinion) (quoting id. at *5) (citing 20 C.F.R. § 416.945; Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998)); see also SSR 96-8p, 1996 SSR LEXIS 5 at *5. Residual functional capacity is "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs." 20 C.F.R. § 404, Subpart P, App. 2 § 200.00(c).

Although an ALJ may not speculate, the ALJ may "draw inferences logically flowing from the evidence." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)); see also SSR 86-8, 1896 SSR LEXIS 15 at *22.

a. Dr. Thomas Clifford, Ph.D.

Dr. Clifford evaluated plaintiff's records and provided an opinion that was given "great weight" by the ALJ regarding plaintiff's impairments and functional limitations (Tr. 32, 306-23). Although plaintiff contends that "Dr. Clifford's opinion is that Mr. Reid is limited to '1- and 2- step instructions. Clmt recalled 2/3 objects after a 5 min delay" (see Opening Brief, ECF No. 15, p. 12), the record does not substantiate plaintiff's position.

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In the narrative portion of his functional capacity assessment, Dr....

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