United States District Court, E.D. Washington
DOMINO L. TOWER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
T. RODGERS UNITED STATES MAGISTRATE JUDGE.
THE COURT are cross-motions for summary judgment.
ECF No. 14, 16. Attorney Lora Lee Stover represents Domino L.
Tower (Plaintiff); Special Assistant United States Attorney
Danielle R. Mroczek represents the Commissioner of Social
Security (Defendant). The parties have consented to proceed
before a magistrate judge. ECF No. 6. After reviewing the
administrative record and briefs filed by the parties, the
Court GRANTS Defendant's Motion for
Summary Judgment and DENIES Plaintiff's
Motion for Summary Judgment.
filed applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB) on March 13, 2009, Tr.
505, alleging disability since December 5, 2006, Tr. 438,
440, due to back problems, shoulder problems, a brain cyst,
memory issues, and pain in the elbows. Tr. 511. The
applications were denied initially and upon reconsideration.
Tr. 229-32, 237-41. Administrative Law Judge (ALJ) R.J. Payne
held a hearing on July 8, 2010 and heard testimony from
Plaintiff and medical expert, Arthur Lorber, M.D. Tr. 42-60.
The ALJ held a supplemental hearing on September 30, 2010 and
heard testimony from Plaintiff and Ronald Klein, Ph.D. Tr.
61-94. The ALJ issued an decision on October 21, 2010 finding
Plaintiff disabled from December 5, 2006 through December 31,
2007 and not disabled starting January 1, 2008. Tr. 170-85.
The Appeals Council granted Plaintiff's request for
review and remanded the claim for additional proceedings
regarding the issue of disability after December 31, 2007.
Tr. 193-96. The ALJ held a second hearing on July 31, 2012
and heard testimony from Plaintiff and vocational expert,
Daniel McKinney. Tr. 95-109. The ALJ issued a new decision on
August 30, 2012 finding that Plaintiff's disability had
ended as of January 1, 2008. Tr. 200-16. The Appeals Council
again granted Plaintiff's request for review and remanded
the case for further proceedings to address disability after
January 1, 2008. Tr. 224-28. The ALJ held two additional
hearings on November 7, 2014 and June 29, 2015 and heard
testimony from Plaintiff, medical expert, Robert C. Thompson,
M.D., and vocational expert, Diane Kramer. Tr.
110-162. The ALJ issued a third
decision on July 24, 2015 finding Plaintiff had not been
under a disability since January 1, 2008. Tr. 21-31. The
Appeals Council denied Plaintiff's request for review on
September 27, 2016. Tr. 1-6. The ALJ's July 24, 2015
decision became the final decision of the Commissioner, which
is appealable to the district court pursuant to 42 U.S.C.
§ 405(g). Plaintiff filed this action for judicial
review on November 22, 2016. ECF No. 1, 4.
facts of the case are set forth in the administrative hearing
transcript, the ALJ's decision, and the briefs of the
parties. They are only briefly summarized here.
was 45 years old on January 1, 2008. Tr. 438. Plaintiff had
completed some college. Tr. 518. He reported that he last
worked in December 2006 and stopped working because of his
conditions. Tr. 511. His reported work history includes the
positions of herdsman, horticulturist, and laborer. Tr. 512
is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). The Court reviews the ALJ's determinations of law
de novo, deferring to a reasonable interpretation of the
statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th
Cir. 2000). The decision of the ALJ may be reversed only if
it is not supported by substantial evidence or if it is based
on legal error. Tackett v. Apfel, 180 F.3d 1094,
1097 (9th Cir. 1999). Substantial evidence is defined as
being more than a mere scintilla, but less than a
preponderance. Id. at 1098. Put another way,
substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971). If the evidence is susceptible to more than one
rational interpretation, the court may not substitute its
judgment for that of the ALJ. Tackett, 180 F.3d at
1097. If substantial evidence supports the administrative
findings, or if conflicting evidence supports a finding of
either disability or non-disability, the ALJ's
determination is conclusive. Sprague v. Bowen, 812
F.2d 1226, 1229-30 (9th Cir. 1987). Nevertheless, a 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. Secretary of
Health and Human Services, 839 F.2d 432, 433 (9th Cir.
Commissioner has established a five-step sequential
evaluation process for determining whether a person is
disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a);
see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden
of proof rests upon the claimant to establish a prima facie
case of entitlement to disability benefits. Tackett,
180 F.3d at 1098-99. This burden is met once the claimant
establishes that physical or mental impairments prevent him
from engaging in his previous occupations. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). If the claimant
cannot do his past relevant work, the ALJ proceeds to step
five, and the burden shifts to the Commissioner to show that
(1) the claimant can make an adjustment to other work, and
(2) specific jobs exist in the national economy which the
claimant can perform. Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the
claimant cannot make an adjustment to other work in the
national economy, a finding of “disabled” is
made. 20 C.F.R. §§ 404.1520(a)(4)(v),
24, 2015, the ALJ issued a decision finding Plaintiff was not
disabled as defined in the Social Security Act as of January
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since January 1, 2008. Tr. 24.
two, the ALJ determined Plaintiff had the severe impairment
of degenerative disk disease. Tr. 24.
three, the ALJ found Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. Tr. 24.
four, the ALJ assessed Plaintiff's residual function
capacity and determined he could perform a range of light
work with the following limitations:
the claimant can sit for two hour [sic.] at a time
for a total of six hours in an eight hour workday with normal
breaks. He can stand and walk 1 hour at a time and 3 hours
each, in any combination, in an 8 hour workday with normal
breaks. He can lift and carry 11-20 pounds occasionally and
up to 10 pounds frequently. He can occasionally climb stairs
and ramps and never climb ladders or scaffolds. He can
occasionally stoop, kneel, and crouch, and never crawl. The
claimant should avoid all exposure to unprotected heights,
hazardous machinery, and heavy industrial-type machinery. The
claimant has physical symptomatology, to include pain and he
takes prescription medication for this symptomatology.
However, despite the level of pain and/or any side effects of
the medicine, the claimant would be able to remain reasonably
attentive and responsive in a work setting and would be able
to carry out normal work assignments satisfactorily.
Tr. 25. The ALJ identified Plaintiff's past relevant work
as laminator-assembler, laborer/landscaper, and construction
worker I and concluded that Plaintiff was not able to perform
his past relevant work. Tr. 29-30.
five, the ALJ determined that, considering Plaintiff's
age, education, work experience and residual functional
capacity, and based on the testimony of the vocational
expert, there were other jobs that exist in significant
numbers in the national economy Plaintiff could perform,
including the jobs of small parts assembler, parking lot
attendant, electronical assembler, and sorter. Tr. 30-31. The
ALJ concluded Plaintiff was not under a disability within the