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Kosmicki v. Commissioner of Social Security

United States District Court, E.D. Washington

January 31, 2018




         BEFORE THE COURT are cross-motions for summary judgment. ECF No. 13, 14. Attorney Gary R. Penar represents Monica Michele Kosmicki (Plaintiff); Special Assistant United States Attorney L. Jamala Edwards represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 5. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff's Motion for Summary Judgment; DENIES Defendant's Motion for Summary Judgment; and REMANDS the matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 405(g).


         Plaintiff filed an application for Disability Insurance Benefits on October 31, 2012, alleging disability since October 1, 2010, due to degenerative disc disease, fibromyalgia, depression, arthritis, rectocele, high blood pressure, joint pain and diverticulitis. Tr. 143, 147. The application was denied initially and upon reconsideration. Administrative Law Judge (ALJ) Jesse K. Shumway held a hearing on July 27, 2015, Tr. 30-67, and issued an unfavorable decision on August 5, 2015, Tr. 10-21. The Appeals Council denied Plaintiff's request for review on December 2, 2016. Tr. 1-4. The ALJ's August 2015 decision thus 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 January 26, 2017. ECF No. 1.


         Plaintiff was born on May 15, 1960, and was 50 years old on the alleged onset date, October 1, 2010. Tr. 143. Plaintiff obtained a GED in 1988 and completed vocational schooling to become a practical nurse. Tr. 60-61, 148. She has past relevant work as a licensed practical nurse. Tr. 40. Plaintiff indicated she stopped working in October of 2010 because her office wanted her to work more hours and she was not physically able to perform the work. Tr. 47. She stated she had subsequently looked into other types of work within the medical field, but had not discovered any jobs she believed she would be qualified for or be able to do. Tr. 59-60. She had not applied for any other positions. Tr. 60.

         At the administrative hearing, Plaintiff testified she has constant low back pain and radicular pain in her legs five or six times a year. Tr. 41-43. She has had physical therapy, massage and chiropractic treatments, injections, a nerve block, and a Rhizotomy, but had not seen an orthopedist for her back pain. Tr. 43-46. Plaintiff stated the back pain persisted despite all of these treatments. Tr. 46. Plaintiff indicated she had difficulty lifting and could stand for only 10 to 15 minutes at a time before needing to switch positions. Tr. 49-50. She also testified she could only sit 45 minutes to an hour before needing to stand up and walk around. Tr. 61. Plaintiff described problems with her shoulders that inhibited her ability to reach, but stated she did not have difficulty using her hands. Tr. 50-51. A rheumatologist had recently diagnosed Plaintiff with fibromyalgia. Tr. 53. She testified she has fatigue as a result of the fibromyalgia and needs to rest most of the day. Tr. 55-56.


         The ALJ 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 ALJ's determinations of law are reviewed de novo, with deference to a reasonable interpretation of the applicable 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; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 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, 1229-1230 (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. 1988).


         The 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); 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 1098-1099. This burden is met once a claimant establishes that a physical or mental impairment prevents the claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot perform 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 claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a 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), 416.920(a)(4)(v).


         On August 5, 2015, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act.

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date, October 1, 2010, through the date last insured, December 31, 2014. Tr. 12. At step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, left hip pain, bilateral shoulder degeneration, fibromyalgia, and depression/dysthymia. Tr. 12. At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. Tr. 13.

         The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and found Plaintiff could perform light exertion level work, but with the following limitations: she could only sit 45 minutes at a time and stand and/or walk 30 minutes at a time; she could not climb ladders, ropes, or scaffolds and could only occasionally perform other postural activities; she could only occasionally reach overhead on the right and could not reach overhead on the left; she could not have concentrated exposure to extreme cold, vibration, or hazards such as unprotected heights and moving mechanical parts; she was limited to simple, routine and repetitive tasks and well learned detailed tasks; and she could have only superficial contact with the public. Tr. 15.

         At step four, the ALJ found Plaintiff was unable to perform her past relevant work as a licensed practical nurse. Tr. 19. At step five, the ALJ determined that, based on the testimony of the vocational expert, and considering Plaintiff's age, education, work experience and RFC, Plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy, including the jobs of marker pricer, router and production assembler. Tr. 20-21. The ALJ thus concluded Plaintiff was not under a disability within ...

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