Spaulding v. Astrue, C10-1749-MJP-JPD

• Decision Date: 18 October 2011
• Docket Number: NO. C10-1749-MJP-JPD,C10-1749-MJP-JPD
• Court: U.S. District Court — Western District of Washington
• Parties: GARY A. SPAULDING, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

GARY A. SPAULDING, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

NO. C10-1749-MJP-JPD

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

DATED: October 18, 2011

REPORT AND

RECOMMENDATION

Plaintiff Gary A. Spaulding appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be REVERSED and REMANDED.

I. FACTS AND PROCEDURAL HISTORY

At the time of the administrative hearing, plaintiff was a fifty-two year old man with a ninth-grade education. Administrative Record ("AR") at 573. His past work experience includes employment as a commercial fisherman. AR at 56. Plaintiff filed a claim for DIBand SSI payment on February 10, 2005, which is also his amended alleged onset date.¹ AR at 233. Plaintiff asserts that he is disabled due to degenerative disc disease and hepatitis C. AR at 14, 369.

The Commissioner denied plaintiff's claim initially and on reconsideration. AR at 36-37, 40-43. Plaintiff requested a hearing which took place on September 26, 2006. AR at 230-56. On November 21, 2006, the ALJ issued a decision finding plaintiff not disabled and denied benefits based on a finding that plaintiff could perform jobs existing in significant numbers in the national economy. AR at 9-19. After the Appeals Council denied review on May 18, 2007, plaintiff appealed to the U.S. District Court for the Western District of Washington. AR at 4.

On February 26, 2008, the undersigned issued a Report and Recommendation remanding the case to the ALJ for further proceedings consistent with his opinion. AR at 314-24. An Order of Remand was issued by the Honorable Richard A. Jones on May 13, 2008. AR at 313. The ALJ held a new hearing on September 11, 2008, at which he heard testimony from plaintiff as well as a vocational expert ("VE"). AR at 569-610. On November 4, 2008, the ALJ issued a second decision finding plaintiff not disabled because there are jobs that exist in significant numbers in the national economy that plaintiff can perform. AR at 294-309. The Appeals Council declined to assume jurisdiction, making the ALJ's second decision the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). AR at 257. On October 28, 2010, plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 1.

II. JURISDICTION

Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when 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 (9th Cir. 2005). "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. Richardson v. Perales, 402 U.S. 389, 201 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.

The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if heconsidered the claimant's evidence.

Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).

IV. EVALUATING DISABILITY

As the claimant, Mr. Spaulding bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is 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). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his 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); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).² If he is, disability benefits are denied. If he is not, theCommissioner proceeds to step two. At step two, the claimant must establish that he has one or more medically severe impairments, or combination of impairments, that limit his physical or mental ability to do basic work activities. If the claimant does not have such impairments, he is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe impairment, the Commissioner moves to step three to determine whether the impairment meets or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d). A claimant whose impairment meets or equals one of the listings for the required twelve-month duration requirement is disabled. Id.

When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.

V. DECISION BELOW

On November 4, 2008, the ALJ issued a decision finding the following:

1. The claimant has not engaged in substantial gainful activity since February 10, 2004, the application date.

2. The claimant has the following severe impairment: degenerative disc/joint disease of the back; depression; anxiety; and a personality disorder. The claimant has non-severe impairments of substance abuse and hepatitis C.

3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

4. The claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). The claimant can occasionally lift and/or carry twenty pounds. The claimant can frequently lift and/or carry 10 pounds. The clamant can stand and/or walk (with normal breaks) for a total of about six hours in an eight hour workday. The claimant can push and/or pull unlimitedly. The claimant can occasionally climb ladders, ropes or scaffolds. The claimant can occasionally balance and stoop. The claimant can frequently kneel, crouch or crawl. The claimant must avoid concentrated exposure to hazards (machinery, heights, etc.).

The claimant has the mental capability to: adequately perform the mental activities generally required by competitive, remunerative, unskilled work as follows: understand, remember and carry out simple instructions compatible with unskilled work; the claimant would have average ability to perform sustained work activities (i.e. can maintain attention and concentration; persistence and pace) in an ordinary work setting on a regular and continuing basis (i.e. eight hours a day, for five days a week, or an equivalent work schedule) within customary tolerances of employers rules regarding sick leave and absence. The claimant can make judgments commensurate with the function of unskilled work, i.e., simple work-related decisions;

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