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Licking v. Colvin

United States District Court, Ninth Circuit

October 7, 2013

ROBERT LEROY LICKING, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, [1] Defendant.

RICHARD A. SLY, LINDA S. ZISKIN, Ziskin Law Office, Las Vegas, NV, Attorneys for Plaintiff.

S. AMANDA MARSHALL, United States Attorney ADRIAN L. BROWN Assistant United States Attorney Portland, OR, DAVID MORADO Regional Chief Counsel JORDAN D. GODDARD Special Assistant United States Attorney Seattle, WA, Attorneys for Defendant.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

Plaintiff Robert L. Licking seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which he denied Plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act.

This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a thorough review of the record, the Court AFFIRMS the Commissioner's final decision and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed his application for DIB on January 27, 2009. Tr. 19. The application was denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on April 14, 2011. Tr. 19. At the hearing Plaintiff was represented by an attorney. Plaintiff, lay witnesses Kathleen Polley and Bruce Burden, and a vocational expert (VE) testified at the hearing. Tr. 19. Kathleen Polley and Charles Burden submitted written statements. Tr. 165-72, 203-04.

The ALJ issued a decision on April 26, 2011, in which he found Plaintiff was not entitled to benefits. Tr. 16. That decision became the final decision of the Commissioner on January 10, 2012, when the Appeals Council denied Plaintiff's request for review. Tr. 1.

BACKGROUND

Plaintiff was born May 12, 1953, and was 57 years old at the time of the hearing. Tr. 51, 143. Plaintiff completed a General Educational Development degree, carpenter's degree, masonry degree, and heavy-equipment degree. Tr. 51-52. Plaintiff has past relevant work experience as a dump-truck driver and construction driver. Tr. 50-51, 64.

Plaintiff alleges disability since November 1, 2008, due to gastro-bloating syndrome and neck pain. Tr. 40, 45-46, 53, 143.

Except when noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the medical records, this Court adopts the ALJ's summary of the medical evidence. See Tr. 21-23, 25-27.

STANDARDS

The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To meet this burden, a claimant must demonstrate his inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more than a mere scintilla of evidence but less than a preponderance. Id. (citing Valentine, 574 F.3d at 690).

The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). See also 20 C.F.R. § 404.1520. Each step is potentially dispositive.

At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as ...


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