United States District Court, E.D. Washington
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY
Stanley A. Bastian United States District Judge
the Court are Plaintiff's Motion for Summary Judgment,
ECF No. 13, and Defendant's Motion for Summary Judgment,
ECF No. 14. The motions were heard without oral argument.
Plaintiff is represented by Michael G. Thompson, and
Defendant is represented by Assistant United States Attorney
Timothy M. Durkin and Special Assistant United States
Attorney Justin L. Martin. For the reasons set forth below,
the Court denies Plaintiff's motion, and
grants Defendant's motion.
August 17, 2012, Plaintiff filed an application for
disability insurance benefits. Plaintiff alleged an onset
date of January 7, 2008. Plaintiff, with the advice of
counsel, amended her alleged disability onset date to
February 1, 2011.
application was denied initially on October 2, 2012, and on
reconsideration on February 14, 2013. On September 4, 2014,
Plaintiff appeared and testified at a hearing held in
Spokane, Washington before Administrative Law Judge (ALJ)
Marie Palachuk. The ALJ issued a decision on November 4,
2014, finding that Plaintiff was not disabled as defined by
the Social Security Act. Plaintiff timely requested review by
the Appeals Council, which denied the request on March 30,
2016. The Appeals Council's denial of review makes the
ALJ's decision the final decision of the Commissioner.
filed a timely appeal with the United States District Court
for the Eastern District of Washington on May 23, 2016. The
matter is before this Court pursuant to 42 U.S.C. §
Social Security Act defines disability as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(A). A claimant shall be determined to be
under a disability only if her impairments are of such
severity that the claimant is not only unable to do her
previous work, but cannot, considering claimant's age,
education, and work experiences, engage in any other
substantial gainful work which exists in the national
economy. 42 U.S.C. § 423(d)(2)(A).
Commissioner has established a five-step sequential
evaluation process for determining whether a person is
disabled. 20 C.F.R. § 404.1520(a)(4); Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987).
Is the claimant engaged in substantial gainful activities? 20
C.F.R. § 404.1520(b). Substantial gainful activity is
work done for pay and requires compensation above the
statutory minimum. 20 C.F.R. § 404.1574; Keyes v.
Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the
claimant is engaged in substantial activity, benefits are
denied. 20 C.F.R. § 404.1571. If she is not, the ALJ
proceeds to step two.
Does the claimant have a medically-severe impairment or
combination of impairments? 20 C.F.R. § 404.1520(c). If
the claimant does not have a severe impairment or combination
of impairments, the disability claim is denied. A severe
impairment is one that lasted or must be expected to last for
at least 12 months and must be proven through objective
medical evidence. 20 C.F.R. § 404.1509. If the
impairment is severe, the evaluation proceeds to the third
Does the claimant's impairment meet or equal one of the
listed impairments acknowledged by the Commissioner to be so
severe as to preclude substantial gainful activity? 20 C.F.R.
§ 404.1520(d); 20 C.F.R. § 404 Subpt. P. App. 1. If
the impairment meets or equals one of the listed impairments,
the claimant is conclusively presumed to be disabled.
Id. If the impairment is not one conclusively
presumed to be disabling, the evaluation proceeds to the
considering Step 4, the ALJ must first determine the
claimant's residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). An individual's RFC is her ability to
do physical and mental work activities on a sustained basis
despite limitations from her impairments.
Does the impairment prevent the claimant from performing work
she has performed in the past? 20 C.F.R. § 404.1520(f).
If the claimant can perform her previous work, she is not
disabled. Id. If the claimant cannot perform this
work, the evaluation proceeds to the fifth and final step.
Is the claimant able to perform other work in the national
economy in view of her age, education, and work experience?
20 C.F.R. § 404.1520(g).
initial burden of proof rests upon the claimant to establish
a prima facie case of entitlement to disability benefits.
Tackett v. Apfel, 108 F.3d 1094, 1098 (9th Cir.
1999). This burden is met once a claimant establishes that a
physical or mental impairment prevents her from engaging in
her previous occupation. Id. At step five, the
burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful activity. Id.
Commissioner's determination will be set aside only when
the ALJ's findings are based on legal error or are not
supported by substantial evidence in the record. Matney
v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing
42 U.S.C. § 405(g)). Substantial evidence is “more
than a mere scintilla, ” Richardson v.
Perales, 402 U.S. 389, 401 (1971), but “less than
a preponderance.” Sorenson v. Weinberger, 514
F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. The Court must uphold
the ALJ's denial of benefits if the evidence is
susceptible to more than one rational interpretation, one of
which supports the decision of the ALJ. Batson v.
Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004). The Court reviews the entire record. Jones v.
Heckler, 760 F.2d 993, 995 (9th Cir. 1985). “If
the evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”
Matney, 981 F.2d at 1019.
decision supported by substantial evidence will be set aside
if the proper legal standards were not applied in weighing
the evidence and making the decision. Brawner v.
Sec'y of Health & Human Servs., 839 F.2d 432,
433 (9th Cir. 1988). An ALJ is allowed
“inconsequential” errors as long as they are
immaterial to the ultimate nondisability determination.
Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d
1050, 1055 (9th Cir. 2006).
facts have been presented in the administrative transcript,
the ALJ's decision, and the briefs to this Court; only
the most relevant facts are summarized here. At the time of
the hearing, Plaintiff was fifty-seven years old. Plaintiff
is married and does not have any children under the age of
eighteen. She lives in a home with her husband of over
thirty-three years, has a high school education, and can
read. Plaintiff owned and managed a business before closing
it. Following that, she worked as a census taker, assistant
manager, and bookkeeper.
working as an assistant manager Plaintiff injured her left
shoulder. The injury, cumulative in nature, occurred on the
job while loading fifty-pound feed sacks on January 7, 2008.
Following the injury, Plaintiff had three surgeries on her
left shoulder. Eugene Pontecorvo, D.O., orthopedic surgeon
and Plaintiff's treating physician, performed all three
left shoulder surgeries on Plaintiff, the last of which was
conducted in 2010.
September 9, 2012, Plaintiff made the following
representations, among others, in a Social Security
Administration Function Report: (1) Plaintiff is right hand
dominant; (2) Plaintiff is in pain due to her left shoulder
injury; (3) Plaintiff's pain partially inhibits her
ability to perform household chores; (4) Plaintiff's pain
partially inhibits her ability to perform workplace duties;
(5) Plaintiff's pain limits her to approximately nine
holes of golf rather than eighteen; (6) Plaintiff is able to
garden and perform outdoor tasks such as raking, shoveling,
and harvesting; (7) Plaintiff is able to prepare basic meals
and groom without assistance, daily; (8) Plaintiff is able to
socialize weekly with friends; (9) Plaintiff is able to pay
bills; (10) Plaintiff hired house cleaners to help with