United States District Court, E.D. Washington
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS
T. RODGERS UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.
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.
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).
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).
August 5, 2015, the ALJ issued a decision finding Plaintiff
was not disabled as defined in the Social Security Act.
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.
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.
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 ...