Campbell v. Colvin, No. 2:2012cv00352 - Document 22 (E.D. Wash. 2013)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - denying 14 Motion for Summary Judgment; and granting 17 Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (CC, Case Administrator)
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Campbell v. Colvin Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 9 JACOB ANDERS CAMPBELL, 10 Plaintiff, 11 v. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. NO. CV-12-0352-RHW ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 15 16 14, and Defendant’s Motion for Summary Judgment, ECF No. 17. The motions 17 were heard without oral argument. Plaintiff is represented by Lora Lee Stover. 18 Defendant is represented by Assistant United States Attorney Pamela De Rusha 19 and Special Assistant United States Attorney Lisa Goldoftas. 20 I. Jurisdiction 21 On April 9, 2010, Plaintiff Jacob Campbell filed both a Title II application 22 for disability insurance benefits (DIB) and a Title XVI application for 23 Supplemental Social Security Income (SSI). Plaintiff alleges that he has been 24 disabled since December 17, 2008. His application was denied initially on May 13, 2010, and again denied on 25 26 reconsideration on September 29, 2010. A timely request for a hearing was made. 27 On July 14, 2011, Plaintiff appeared in Spokane, Washington before 28 Administrative Law Judge (ALJ) James W. Sherry. Thomas A. Polsin, vocational ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 expert, also appeared at the hearing. Plaintiff was represented by attorney Lora 2 Lee Stover. 3 The ALJ found that Plaintiff was not disabled from December 17, 2008, the 4 date the alleged disability began, to August 12, 2011. Plaintiff timely requested 5 review by the Appeals Council, which was denied on March 23, 2012. The 6 Appeals Council’s denial of review makes the ALJ’s decision the final decision of 7 the Commissioner. 42 U.S.C. §405(h). Plaintiff timely filed an appeal with the 8 U.S. District Court for the Eastern District of Washington on May 15, 2012. The 9 instant matter is before the district court pursuant to 42 U.S.C. § 405(g). 10 II. Sequential Evaluation Process 11 The Social Security Act defines disability as the “inability to engage in any 12 substantial gainful activity by reason of any medically determinable physical or 13 mental impairment which can be expected to result in death or which has lasted or 14 can be expected to last for a continuous period of not less than twelve months.” 15 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 16 under a disability only if his impairments are of such severity that the claimant is 17 not only unable to do his previous work, but cannot, considering claimant's age, 18 education and work experiences, engage in any other substantial gainful work 19 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a)(4), 22 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). 23 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 24 §§ 404.1520(b), 416.920(b). Substantial gainful activity is work done for pay and 25 requires compensation above the statutory minimum. 20 C.F.R. §§ 404.1574, 26 416.972; Keyes v. Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is 27 engaged in substantial activity, benefits are denied. 20 C.F.R. §§ 404.1571, 28 416.920(b). If he is not, the ALJ proceeds to step two. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Step 2: Does the claimant have a medically-severe impairment or 2 combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 3 claimant does not have a severe impairment or combination of impairments, the 4 disability claim is denied. A severe impairment is one that lasted or must be 5 expected to last for at least 12 months and must be proven through objective 6 medical evidence. 20 C.F.R. §§ 404.1508-09, 416.908-09. If the impairment is 7 severe, the evaluation proceeds to the third step. 8 Step 3: Does the claimant’s impairment meet or equal one of the listed 9 impairments acknowledged by the Commissioner to be so severe as to preclude 10 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. 11 § 404 Subpt. P. App. 1. If the impairment meets or equals one of the listed 12 impairments, the claimant is conclusively presumed to be disabled. Id. If the 13 impairment is not one conclusively presumed to be disabling, the evaluation 14 proceeds to the fourth step. 15 Step 4: Does the impairment prevent the claimant from performing work he 16 has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 17 is able to perform his previous work, he is not disabled. Id. If the claimant cannot 18 perform this work, the ALJ proceeds to the fifth and final step. 19 Step 5: Is the claimant able to perform other work in the national economy 20 in view of his age, education, and work experience? 20 C.F.R. §§ 404.1520(f), 21 416.920(f). 22 The initial burden of proof rests upon the claimant to establish a prima facie 23 case of entitlement to disability benefits. Tackett v. Apfel, 108 F.3d 1094, 1098 24 (9th Cir. 1999). This burden is met once a claimant establishes that a physical or 25 mental impairment prevents him from engaging in his previous occupation. Id. At 26 step five, the burden shifts to the Commissioner to show that the claimant can 27 perform other substantial gainful activity. Id. 28 /// ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 III. Standard of Review 2 The Commissioner’s determination will be set aside only when the ALJ’s 3 findings are based on legal error or are not supported by substantial evidence in 4 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) 5 (citing 42 .S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 6 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” 7 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975). Substantial 8 evidence is “such relevant evidence as a reasonable mind might accept as adequate 9 to support a conclusion.” Richardson, 402 U.S. at 401. The Court must uphold the 10 ALJ’s denial of benefits if the evidence is susceptible to more than one rational 11 interpretation, one of which supports the decision of the administrative law judge. 12 Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “If the 13 evidence can support either outcome, the court may not substitute its judgment for 14 that of the ALJ.” Matney, 981 F.2d at 1019. 15 A decision supported by substantial evidence will be set aside if the proper 16 legal standards were not applied in weighing the evidence and making the 17 decision. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9th 18 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are 19 immaterial to the ultimate non-disability determination. Stout v. Comm'r, Soc. Sec. 20 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 21 IV. Statement of Facts 22 The facts have been presented in the administrative transcript and the ALJ’s 23 decision, and will only be summarized here. 24 At the time of the hearing, Plaintiff was 33 years old. He had separated from 25 his wife, and had four minor children. He attended school through his freshman 26 year and thereafter obtained his GED. He has an extensive and varied work 27 history, including managing fast food restaurants, construction, welding and 28 fabricating. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 On 2008, Plaintiff fell on ice and injured his left knee. He underwent 2 surgery for a left knee lateral tibial plateau depression fracture in January, 2009. 3 He testified that his left knee pain is constant. He cannot cross his legs, kneeling is 4 impossible, and his knee seems to lock up. 5 He has been attending school for culinary arts, but withdrew because he had 6 two surgeries on his knee in 2010 and 2011. He had arthroscopic surgery in 2010, 7 where the doctor removed hardware, i.e. a screw and washer, from his previous 8 surgery. He also smoothed a tear in his meniscus. (Tr. 490, 492.) He continued to 9 have pain in his knee, so another surgery was performed. (Tr. 540.) He reported he 10 continued to have pain after this surgery. He continues to wear a brace and engage 11 in physical therapy. He takes Hydrocodone and Ibuprofen for pain. (Tr. 214.) 12 He testified he hoped to return to school in the fall of 2011. 13 V. The ALJ’s findings 14 The ALJ found Plaintiff met the insured status requirements of the Social 15 Security Act through December 31, 2013. (Tr. 22.) 16 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 17 activity since December 17, 2008, the alleged onset date. (Tr. 22.) 18 At step two, the ALJ found Plaintiff had the following severe impairments: 19 status post open reduction internal fixation left tibial plateau fracture with 20 posterior lateral corner malunion, left knee meniscus tear, and posttraumatic lateral 21 compartment arthorosis of the left knee. (Tr. 22.) 22 At step three, the ALJ found Plaintiff did not have an impairment or 23 combination of impairments that meets or medically equals one of the listed 24 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 23.) The ALJ 25 considered whether Plaintiff met the listing for 1.02, major dysfunction of a joint 26 (Tr. 23.) The ALJ found Plaintiff did not meet the listing because he is able to 27 ambulate effectively as defined in the regulations. (Tr. 23.) 28 /// ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 The ALJ found Plaintiff has the residual functional capacity1 to lift and/or 1 2 carry 20 pounds occasionally and 10 pounds frequently, to stand and/or walk for 3 two hours and sit for six hours in an eight-hour workday, to occasionally operate 4 foot controls with the left lower extremity, to occasionally climb ramps and stairs, 5 balance, stoop, and crouch, and never climb ladders, ropes or scaffolds, kneel, or 6 crawl, but should avoid concentrated exposure to extreme could and excessive 7 vibration, and should avoid even moderate exposure to hazards such as 8 unprotected heights and use of moving machinery. (Tr. 23.) 9 At step four, the ALJ found Plaintiff not capable of performing past relevant 10 work as an assistant manager, fast food, fast food worker, fast food cook, 11 construction worker, sales clerk, short order cook, kitchen helper, food processor, 12 machine set-up mechanic, sandwich maker and store manager. (Tr. 26.) 13 At step five, the ALJ considered Plaintiff’s age, education, work experience, 14 and residual functional capacity and found there are jobs that exist in significant 15 numbers in the national economy that Plaintiff can perform. Specifically, the ALJ 16 found that Plaintiff can perform the representative jobs of small parts assembler, 17 storage rental clerk, and cashier. (Tr. 27.) 18 /// 19 20 21 22 23 24 25 26 27 28 1 “RFC is what an individual can still do despite his or her functional limitations and restrictions cased by his or her medically determinable physical or mental impairments. It is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to perform work-related physical and mental activities. . . RFC is the individual’s maximum remaining ability to perform sustained work on a regular and continuing basis: i.e. 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR96-6P. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 VI. Issues for Review 2 Plaintiff presents the following issues with respect to the ALJ’s findings: 3 1. The ALJ erred in disregarding the opinions of Plaintiff’s providers 4 regarding Plaintiff’s condition. 5 2. The ALJ erred in assessing Plaintiff’s residual functional capacities. 6 3. The ALJ failed to pose a proper hypothetical to the vocational expert. 7 4. The ALJ erred in assessing Plaintiff’s credibility. 8 5. The evidence taken from the record as a whole does not support the 9 ALJ’s decision that Plaintiff is not disabled. 10 VII. Discussion 11 1. 12 Plaintiff maintains the ALJ improperly evaluated the medical opinion of Dr. Consideration of Examining Physician’s Opinion 13 William Shanks, the consultive examiner. He performed a one-time independent 14 examination of Plaintiff. Specifically, on February 9, 2010, Dr. Shanks referred 15 Plaintiff to an orthopaedic consult and opined that Plaintiff was severely restricted. 16 (Tr. 393.) ARNP Hendrickson treated Plaintiff and in February 4, 2010, indicated 17 that Plaintiff was capable of sedentary or light work. (Tr. 346.) On August 17, 18 2010, ARNP Hendrickson indicated that Plaintiff was capable of sedentary work 19 at that time. (Tr. 436.) 20 The ALJ gave ARNP Hendrickson’s opinion significant weight and gave 21 Dr. Shanks’ opinion limited weight because it was inconsistent with other 22 substantial evidence in the record, and because Dr. Shanks did not indicate which 23 level of work Plaintiff is capable of despite his standing, walking and lifting 24 restrictions. (Tr. 24-25.) In addition, the ALJ gave significant weight to the non25 examining state physicians who assessed a limited sedentary capacity. (Tr. 26.) 26 “When there is conflicting medical evidence, the Secretary must determine 27 credibility and resolve the conflict.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th 28 Cir. 1992). More weight is given to a treating physician’s opinion than to the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 opinion of a non-treating physician because a treating physician is employed to 2 cure and has greater opportunity to know and observe the patient as an individual. 3 20 C.F.R. § 416.927(d)(1); see also Andrews v. Shalala, 53 F.3d 1035, 1040-41 4 (9th Cir. 1995). Where the treating doctor’s opinion is not contradicted by another 5 doctor, it may be rejected only for “clear and convincing” reasons. Lester v. 6 Chater, 81 F.3d 821, 820 (9th Cir. 1995). If the treating doctor’s opinion is 7 contradicted by another doctor, the ALJ may not reject this opinion without 8 providing “specific and legitimate reasons” supported by substantial evidence in 9 the record for doing so. Id. Similarly, greater weight is given to the opinion of an 10 examining physician than a non-examining physician. Andrews, 53 F.3d at 1041. 11 Opinions of physicians who examined the claimant only once should be given less 12 weight than the physicians who treated her. 20 C.F.R. § 404.1527; Benecke v. 13 Barnhart, 379 F.3d 587, 592 (9th Cir. 2004). An ARNP is not an “acceptable 14 source.” 20 C.F.R. § 404.1513(a). Thus, the ALJ may not rely on ARNP 15 Hendrickson’s opinion to establish the existence of an impairment. Id. Even so, 16 the ALJ may rely on her opinion to show the severity of Plaintiff’s impairment and 17 how it affects his ability to work. § 404.1513(d). 18 Here, the ALJ’s rejection of Dr. Shanks’ opinion was proper, given that 19 other sources concluded that Plaintiff is capable of sedentary-type work activity. 20 Dr. Shanks’ opinion was given before two surgeries were performed to correct 21 any limitations observed by Dr. Shanks. Specifically, ARNP Hendrickson and Dr. 22 Lynch treated Plaintiff after Dr. Shanks evaluated Plaintiff. Given the nature of 23 Plaintiff’s impairment, it is appropriate to rely on later treatment notes to assess 24 Plaintiff’s residual function. The ALJ did not commit error. He gave specific and 25 legitimate reasons for discounting Dr. Shanks’ opinion, and these reasons are 26 supported by substantial evidence in the record. 27 2. 28 Plaintiff argues the ALJ ignored the effects of pain from his physical Credibility ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 impairments, including how his pain would affect his ability to attend and 2 concentrate. 3 The ALJ rejected Plaintiff’s and third-party statements concerning the 4 intensity, persistence and limited effects of these symptoms because Plaintiff 5 offered no explanation for the discrepancy between the objective findings and the 6 June 2011 medical notes2 and his assertion of being able to stand for 30 minutes at 7 a time and sit for four minutes. (Tr. 25.) The ALJ also considered that Plaintiff 8 was active in a culinary arts program, requiring long periods of standing, and his 9 intention to continue on in that program. (Tr. 25.) The ALJ concluded that this 10 activity is consistent with at least sedentary-type work activity rather than not 11 being able to work at all. (Tr. 25.) 12 An ALJ’s assessment of a claimant’s credibility is entitled to “great weight.” 13 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.1990). When there is no 14 evidence of malingering, the ALJ must give “specific, clear and convincing 15 reasons” for rejecting a claimant's subjective symptom testimony. Molina v. 16 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). If the ALJ’s 17 credibility finding is supported by substantial evidence in the record, the 18 reviewing court “may not engage in second-guessing.” Thomas v. Barnhart, 278 19 F.3d 947, 959 (9th Cir. 2002). 20 In recognition of the fact that an individual’s symptoms can sometimes 21 suggest a greater level of severity of impairment than can be shown by the 22 objective medical evidence alone, 20 CFR 404.1529© and 416.929© describe the 23 kinds of evidence, including the factors below, that the ALJ must consider in 24 addition to the objective medical evidence when assessing the credibility of an 25 26 27 28 2 The notes indicated that Plaintiff walked with a slight limp and had reasonably good range of motion. There was no swelling, and he was assessed with left knee pain. (Tr. 25.) ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 individual’s statements: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The individual’s daily activities; 2. The location, duration, frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms. SSR 96-7P, 1996 WL 374186. Here, the ALJ provided clear and convincing reasons for his credibility determination that were supported by substantial evidence. Notably, the Court has reviewed the transcript and there is no testimony from Defendant regarding his ability to attend and concentrate. Moreover, Plaintiff testified that he did not experience any unwanted side effects from the pain medication he was currently taken. (Tr. 55.) 3. Residual Functional Capacity Plaintiff argues the ALJ erred in assessing his residual functional capacities. He asserts the record does not support a finding that he is capable of performing a restricted range of sedentary work where he would be required to sit for six hours per day. He also argues the ALJ’s hypothetical question did not fully represent Plaintiff’s physical impairments including his pain complaints. As set forth above, the ALJ discounted Plaintiff’s statements regarding his limitations, and the Court found this was not error. Moreover, the ALJ’s determination of Plaintiff’s residual functional capacity is supported by the record. ARNP Hendrickson, Dr. Lynch, and the state examiners all concluded Plaintiff can perform sedentary-type work. Additionally, the ALJ’s hypotheticals to the vocational expert were proper and supported by the record. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 4. 2 Plaintiff argues the ALJ failed to call an orthopedists to testify that Plaintiff Failure to Call Orthopedist to Determine Whether Listing Is Met 3 met or equaled Listing 1.06 because of his inability to effectively ambulate in 4 excess of 12 month period of time and/or his inability to bear weight on a 5 consistent basis. Listing 1.06 covers a fracture of the femur, tibia, pelvis,or one or 6 more of the tarsal bones with: (A) Solid union not evidence on appropriate 7 medically acceptable imaging and not clinically solid; and (B) Inability to 8 ambulate effective and return to effective ambulation did not occur or is not 9 expected to occur within 12 months of onset. 20 C.F.R. Part 404, Subpt. P, App.1, 10 § 1.06. 11 The ALJ did not consider Listing 1.06, but considered Listing 1.02. He 12 concluded Plaintiff’s left knee impairment did not meet or medically equal listing 13 102A because Plaintiff is able to ambulate effectively as defined by the 14 regulations.3 (Tr. 23.) Listing 102A covers major dysfunction of a joint due to any 15 16 3 1.00B.2.b defines “inability to ambulate effectively” as an extreme limitation 17 of the ability to walk; i.e., an impairment(s) that interferes very seriously with the 18 individual's ability to independently initiate, sustain, or complete activities. 19 Ineffective ambulation is defined generally as having insufficient lower extremity 20 functioning (see 1.00J) to permit independent ambulation without the use of a 21 hand-held assistive device(s) that limits the functioning of both upper extremities. 22 The regulations explain that to ambulate effectively, individuals must be 23 capable of sustaining a reasonable walking pace over a sufficient distance to be 24 able to carry out activities of daily living. They must have the ability to travel 25 without companion assistance to and from a place of employment or school. 26 Therefore, examples of ineffective ambulation include, but are not limited to, the 27 inability to walk without the use of a walker, two crutches or two canes, the 28 inability to walk a block at a reasonable pace on rough or uneven surfaces, the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 cause, which is characterized by gross anatomical deformity and chronic joint pain 2 and stiffness with signs of limitation of motion or other abnormal motion of the 3 affected joints and findings of joint space narrowing, bony destruction and 4 ankylosis of the affected joint with involvement of one major peripheral weight5 bearing joint (i.e. hip, knee, or ankle) resulting in an inability to ambulate 6 effectively. 20 C.F.R. Part 404, Subpt. P, App.1, § 1.02A. The ALJ has a special duty to fully and fairly develop the record. Webb v. 7 8 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Where it is necessary to enable the 9 ALJ to resolve an issue of disability, the duty to develop the record may require 10 consulting a medical expert. See 20 C.F.R. §§ 404.1519a, 416.919a; Reed v. 11 Massanari, 270 F.3d 838, 842 (9th Cir. 2001). 12 Here, the ALJ did not state, nor does the record reflect, that the medical 13 evidence was ambiguous or that the record was otherwise inadequate to allow for 14 proper evaluation of Plaintiff’s disability. Plaintiff has not cited to any portion of 15 the record that indicates that Plaintiff was not able to ambulate effectively. Rather, 16 the record supports a finding that Plaintiff meets the definition for effective 17 ambulation found in the regulations. From the record, it can be inferred that 18 Plaintiff is able to ambulate effectively to school, without companion assistance. 19 The record demonstrates that Plaintiff is able to carry out activities of daily living.4 20 As such, it was not necessary for the ALJ to consult a medical expert. The ALJ did 21 22 inability to use standard public transportation, the inability to carry out routine 23 ambulatory activities, such as shopping and banking, and the inability to climb a 24 few steps at a reasonable pace with the use of a single hand rail. The ability to 25 walk independently about one's home without the use of assistive devices does 26 not, in and of itself, constitute effective ambulation. 27 4 Plaintiff testified that he shops, cleans for up to 20 minutes, and takes care of 28 his children when they stay with him. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 not err in obtaining the opinion of a medical expert regarding whether Plaintiff 2 met Listing 1.06. 3 VIII. Conclusion 4 Plaintiff has not met his burden of showing the ALJ committed legal error, 5 or that his conclusion that Plaintiff was not disabled from December 17, 2008 to 6 August 12, 2011, is not supported by substantial evidence. The ALJ properly 7 found that Plaintiff was capable of performing the requirements of representative 8 occupations such as small parts assembler, storage rental clerk, and cashier. 9 Accordingly, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF 14, is DENIED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is 12 GRANTED. 13 3. The decision of the Commissioner denying benefits is affirmed. 14 4. The District Court Executive is directed to enter judgment in favor of 15 Defendant and against Plaintiff. 16 IT IS SO ORDERED. The District Court Executive is hereby directed to 17 file this Order and provide copies to counsel, and close the file. 18 DATED this 29th day of October, 2013. 19 20 s/Robert H. Whaley 21 ROBERT H. WHALEY United States District Judge 22 23 Q:\RHW\aCIVIL\2012\Campbell (SS)\sj.wpd 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13
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