Cabe v. Colvin, No. 2:2013cv00164 - Document 17 (E.D. Wash. 2014)
Court Description: ORDER DENYING PLAINTIFF'S 15 MOTION FOR SUMMARY JUDGMENT and GRANTING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Judgment is entered in favor of Defendant. The file is CLOSED. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)
Download PDF
<![CDATA[
1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 WALTER CABE, III, NO: 13-CV-0164-TOR 8 9 10 11 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, 12 Defendant. 13 14 BEFORE THE COURT are the parties’ cross-motions for summary 15 judgment (ECF Nos. 15 and 16). Plaintiff is represented by Lora Lee Stover. 16 Defendant is represented by Sarah L. Martin. This matter was submitted for 17 consideration without oral argument. The Court has reviewed the administrative 18 record and the parties’ completed briefing and is fully informed. For the reasons 19 discussed below, the Court grants Defendant’s motion and denies Plaintiff’s 20 motion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g); 1383(c)(3). STANDARD OF REVIEW 6 A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 8 limited: the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 11 relevant evidence that “a reasonable mind might accept as adequate to support a 12 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 13 substantial evidence equates to “more than a mere scintilla[,] but less than a 14 preponderance.” Id. (quotation and citation omitted). In determining whether this 15 standard has been satisfied, a reviewing court must consider the entire record as a 16 whole rather than searching for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its If the evidence in the record “is 18 judgment for that of the Commissioner. 19 susceptible to more than one rational interpretation, [the court] must uphold the 20 ALJ’s findings if they are supported by inferences reasonably drawn from the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 2 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 3 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 4 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 5 The party appealing the ALJ’s decision generally bears the burden of establishing 6 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 7 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 8 9 A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that he is not only unable to do his previous 15 work[,] but cannot, considering his age, education, and work experience, engage in 16 any other kind of substantial gainful work which exists in the national economy.” 17 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activities, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. Id. 13 At step three, the Commissioner compares the claimant’s impairment to 14 several impairments recognized by the Commissioner to be so severe as to 15 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 19 20 If the severity of the claimant’s impairment does meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 5 analysis. 6 At step four, the Commissioner considers whether, in view of the claimant’s 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 9 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 10 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 11 404.1520(f); 416.920(f). If the claimant is incapable of performing such work, the 12 analysis proceeds to step five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 16 the Commissioner must also consider vocational factors such as the claimant’s age, 17 education and work experience. Id. If the claimant is capable of adjusting to other 18 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 19 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 work, the analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. Id. 3 The claimant bears the burden of proof at steps one through four above. 4 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If 5 the analysis proceeds to step five, the burden shifts to the Commissioner to 6 establish that (1) the claimant is capable of performing other work; and (2) such 7 work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 8 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 9 ALJ’S FINDINGS 10 At step one of the sequential evaluation process, the ALJ found Plaintiff has 11 not engaged in substantial gainful activity since August 15, 2008, his alleged onset 12 date. Tr. 20. At step two, the ALJ found Plaintiff suffered from the severe 13 impairments of: idiopathic scoliosis; cervical degenerative disc disease; lumbar 14 degenerative disc disease with facet arthropathy; headaches/aseptic meningitis; 15 carpel tunnel syndrome; plantar fasciitis; right inguinal hernia status post repair; 16 right elbow degenerative joint disease; cognitive disorder, not otherwise specified; 17 epicondylitis; and memory weakness. 18 Plaintiff’s impairments, did not meet or medically equal any of the impairments 19 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.1520(d), 20 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Tr. 21. Tr. 20. At step three, the ALJ found ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 The ALJ found that Plaintiff had the residual functional capacity to perform 2 light work with several limitations. Tr. 23. In relevant part, the ALJ found that 3 Plaintiff “is capable of frequent gross manipulation (i.e., handle, grasp, hold, turn 4 objects).” Tr. 23. The ALJ also found that Plaintiff is capable of performing past 5 relevant work as a cashier II and retail sales clerk. Tr. 27. Alternatively, the ALJ 6 found that, considering Plaintiff’s age, education, work experience, and residual 7 functional capacity, a significant number of jobs exist in the national economy that 8 he could perform, such as laundry worker and pricer/marker. Tr. 28. Thus, the 9 ALJ concluded that Plaintiff has not been disabled within the meaning of the 10 Social Security Act at any time from the date of the application was filed through 11 the date of the decision. Tr. 29. 12 The Appeals Council denied Plaintiff’s request for review on March 2, 2013, 13 making the ALJ’s decision the Commissioner’s final decision for purposes of 14 judicial review. Tr. 6-9; 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 15 ISSUE 16 Plaintiff contends that the ALJ erred by improperly evaluating the medical 17 expert’s opinions regarding Plaintiff’s capacity to use his hands and thus his ability 18 to sustain employment. ECF No. 15 at 8. While Plaintiff articulates three other 19 issues, none of them were briefed with any specificity. See ECF No. 15 at 5. 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 DISCUSSION 2 Plaintiff contends that the ALJ erred by improperly evaluating the medical 3 expert’s opinions regarding Plaintiff’s capacity to use his hands and thus his ability 4 to sustain employment. ECF No. 15 at 8. Specifically, Plaintiff argues that the 5 ALJ gave controlling weight the opinion of testifying medical expert James W. 6 Lyons, M.D., yet Dr. Lyons opined Plaintiff could use his hands only on a 7 frequent-to-occasional basis, and Plaintiff’s RFC indicated he could use his hands 8 frequently. ECF No. 15 at 8. 9 At step four of the sequential process the ALJ determines whether, despite 10 Plaintiff's impairments, Plaintiff can still perform his past relevant work. 20 C.F.R. 11 § 404.1520(a)(4)(iv). 12 assessment with the physical and mental demands of Plaintiff's past relevant work. 13 Id. § 404.1520(f). An RFC describes that which a claimant can still do despite his 14 or her physical limitations. 15 determine the claimant's ability to engage in the various levels of work. 20 C.F.R. 16 § 404.1545(b). 17 evidence, determining physical limitations, and crafting the claimant’s RFC. 20 18 C.F.R. § 404.1527(e)(1)-(2). This determination is made by comparing the RFC 20 C.F.R. § 404.1545(a). The RFC is used to The ALJ bears the ultimate responsibility for weighing the 19 In determining the RFC, the ALJ considers “all of the relevant medical and 20 other evidence,” including medical source opinions about functional abilities, and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 descriptions and observations of limitations from the claimant, and “family, 2 neighbors, friends, or other persons.” 3 determination of a claimant's ability to perform work is the province of the ALJ, 4 and no special significance is to be given to a medical source opinion on issues 5 reserved to the ALJ. 20 C.F.R. § 416.927(e); SSR 96-5p. 20 CFR 404.1545(a)(3). The final 6 In this case, non-examining physician James W. Lyons, M.D., a retired 7 orthopedic surgeon, testified at the hearing that Plaintiff “doesn’t quite meet 8 [Listing 1.04], but he comes close.” Tr. 514. Dr. Lyons opined that Plaintiff 9 would “not be able to do anything that required heavy lifting or repetitive 10 lifting….” Tr. 515. Dr. Lyons agreed with the assessment of a light RFC: “lifting 11 up to 20 pounds at a time, frequently lifting or carrying 10 pounds, stand or walk 12 for six hours in an eight-hour day, sit for six hours in an eight-hour day,” along 13 with “unlimited push/pull with the upper extremities.” Tr. 515. 14 15 16 17 18 19 Dr. Lyons testified that Plaintiff’s gross manipulation should be limited to frequent or occasional, but he did not opine which term was more applicable: Q. And what about any limitations for gross manipulation, handling, I think there was some reference in the file to some issues with grip? Did you find those – A. Yes. Q. Substantiated? 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 A. Well, he does have carpal tunnel problem, and so, he might have trouble with that. 2 3 4 5 6 7 8 Q. And none of the doctors in the file gave any limitations. Would the limitation be for frequent or occasional? I’m assuming constant would be ruled out; if, if we are having problems with the upper extremities, that constant use would not be advisable; but what about frequent or occasional? Which would be best consistent [sic] to the record? A. Well, probably frequent or occasional problems. He, he has a hard time keeping a job, because his – he gets fired frequently because of his symptoms. Tr. 516. 9 In this case, the ALJ included in Plaintiff’s RFC that he “is capable of 10 frequent gross manipulation (i.e., handle, grasp, hold, turn objects).” Tr. 23. The 11 ALJ noted, in relevant part, that Dr. Lyons opined that Plaintiff would be unable to 12 perform heavy or repetitive lifting, and he was capable of unlimited pushing and 13 pulling of his upper extremities. Tr. 26. The ALJ also noted that Dr. Lyons 14 “thought there was some evidence of potential limitations in the claimant’s ability 15 for gross manipulation due to carpal tunnel problems…. However, Dr. Lyons 16 testified the claimant had the ability for frequent to occasional use of his upper 17 extremities.” Tr. 26. 18 The ALJ asked vocational expert Jinnie Lawson to consider a hypothetical 19 worker who, in pertinent part, had no limitations on push/pull within the lifting 20 restrictions of the light work category, and could perform “frequent handling and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 fingering, that is, gross manipulation with the upper extremities, grasping, holding, 2 and turning objects.” Tr. 540. Ms. Lawson testified that the hypothetical worker 3 would be able to perform Plaintiff’s past work of bakery line worker. Tr. 540. 4 On cross-examination, Ms. Lawson was asked to consider a hypothetical 5 worker with the same limitations as explained by the ALJ, but who was limited to 6 occasional handling, fingering, and grasping. Tr. 544. Ms. Lawson testified that 7 such limitations would preclude all work in the national economy. Tr. 544; 546. 8 First, Plaintiff’s assertion that the ALJ gave “controlling weight” to Dr. 9 Lyon’s testimony is not supported by the record. ECF No. 15 at 8. Instead, the 10 ALJ specified that Dr. Lyon’s testimony was entitled to “great weight,” based in 11 part upon the “consistency of his testimony” with “other treating and examining 12 opinions contained in the record.” Tr. 26. 13 The ALJ also gave weight to physician assistant Kelly Remy’s opinion, who 14 examined Plaintiff and concluded his sole limitation was “no frequent bending 15 below waist,” and thus cleared Plaintiff to perform food service work at the 16 correction center. Tr. 27; 503-04. Also, the ALJ gave weight to the opinion of 17 non-examining physician Debra Iannuzzi, M.D., who affirmed Plaintiff’s RFC1 18 1 19 20 The RFC was initially drafted by Jennifer Loweree on December 8, 2008. Tr. 266-73. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 that indicated he had no manipulative limitations. Tr. 26; 269; 478. Moreover, 2 non-examining physician Howard Platter, M.D., also found Plaintiff had no 3 manipulative limitations. Tr. 289. 4 Second, Plaintiff’s theory of error is based upon the faulty premise that the 5 ALJ was required to adopt an “occasional” gross manipulation limitation to include 6 in Plaintiff’s RFC. Dr. Lyons did not testify as Plaintiff contends. Instead, Dr. 7 Lyons testified that Plaintiff was limited to “frequent to occasional” gross 8 manipulation, and he did not indicate which term was more apt. The ALJ’s 9 adoption of “frequent” limits on Plaintiff’s gross manipulation was supported by 10 the medical records, and reconciling conflicting testimony is within the province of 11 the ALJ. See 20 C.F.R. § 404.1545(a)(3). As such, the ALJ did not err. 12 IT IS HEREBY ORDERED: 13 1. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. 14 2. Defendant’s Motion for Summary Judgment (ECF No. 16) is 15 GRANTED. 16 The District Court Executive is hereby directed to file this Order, enter 17 JUDGMENT for Defendant, provide copies to counsel, and CLOSE the file. 18 DATED July 23, 2014. 19 20 THOMAS O. RICE United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
