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Newkirk v. Commissioner of Social Security

United States District Court, E.D. Washington

February 15, 2018

MARK A. NEWKIRK, Plaintiff,



         BEFORE THE COURT are cross-motions for summary judgment. ECF No. 17, 22. Attorney Dana Chris Madsen represents Mark A. Newkirk (Plaintiff); Special Assistant United States Attorney Leisa A. Wolf represents the Commissioner of Social Security (Defendant). The parties have not consented to proceed before a magistrate judge. After reviewing the administrative record and briefs filed by the parties, the Court RECOMMENDS granting, in part, Plaintiff's motion for summary judgment, denying Defendant's motion for summary judgment, and remanding the matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 405(g).


         Plaintiff filed an application for Supplemental Security Income on November 13, 2012, alleging disability since December 31, 2009, due to a 2002 back injury, drop foot/walk with a limp, sciatic nerve damage, numbness in left foot, breathing problems, sleep apnea, chronic pain, kidney stones, and reading and writing difficulty. Tr. 281, 304. The application was denied initially and upon reconsideration. Administrative Law Judge (ALJ) Jesse K. Shumway held a hearing on June 5, 2015, Tr. 48-114, and issued an unfavorable decision on June 25, 2015, Tr. 21-34. The Appeals Council denied Plaintiff's request for review on September 29, 2016. Tr. 1-6. The ALJ's June 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 November 22, 2016. ECF No. 1, 4.


         Plaintiff was born on January 13, 1975, and was 34 years old on the alleged onset date, December 31, 2009. Tr. 39, 86. Plaintiff completed school through the eighth grade and has past work as a dishwasher/food preparer, grinder, janitor/cashier, and landscaper. Tr. 89-95, 305. Plaintiff's disability report indicates he stopped working on October 30, 2009, because of his conditions. Tr. 304. Plaintiff testified at the administrative hearing on June 5, 2015, that he did work for three or four weeks at Tire Rama in 2012, but was subsequently fired. Tr. 86-89.

         Plaintiff stated he has low back issues that result in shooting pain down his right leg. Tr. 95, 97. He has a loss of feeling/numbness in his right foot (foot drop) and walks with a limp as a result. Tr. 96. Plaintiff testified he would soon receive a new leg brace to assist with mobility because his previous brace, one he had worn for four years, no longer worked. Tr. 97. Consistent with Plaintiff's testimony, treating physician William Phillips, M.D., reported on July 14, 2015, that Plaintiff's prior brace bound against his calf too much and was painful to wear. Tr. 1221. At that time, Dr. Phillips determined Plaintiff's need for a brace was permanent and prescribed a custom-made brace to help improve Plaintiff's mobility. Tr. 1224.

         Plaintiff indicated he could walk 50 yards in one stretch, stand for up to 10 minutes and sit for up to 30 minutes at a time, and lift up to a gallon of milk (eight pounds). Tr. 98, 101. He stated he will lie down four times a day, for an hour each time. Tr. 99. With respect to daily activities, Plaintiff testified he is able to do his laundry, drive a car, go grocery shopping with help, and attend doctor appointments. Tr. 103-105. He indicated he is able to get along fine with people and had never been fired from a job for not getting along with others. Tr. 106.


         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 which claimant can perform exist in the national economy. 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 June 25, 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 since November 13, 2012, the disability application date. Tr. 22.

         At step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine with right foot drop, affective disorder, and borderline intellectual functioning. Tr. 22.

         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. 24.

         The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and found Plaintiff could perform light exertion level work, but with the following limitations: he could stand for 30 minutes at a time and walk for 15 minutes at a time; he could stand and walk for a total of four hours per day; he could sit for one hour at a time for a total of 6 hours per day; he could not climb ladders, ropes or scaffolds, but could occasionally climb ramps and stairs; he could occasionally balance, crouch, kneel and crawl; he could frequently stoop; he would need to avoid concentrated exposure to hazards such as unprotected heights and moving mechanical parts; and he could perform simple, routine, repetitive tasks requiring simple decision-making and a reasoning level of two or less. Tr. 26.

         At step four, the ALJ found Plaintiff was unable to perform his past relevant work as a kitchen helper, material handler and bench worker. Tr. 33.

         However, the ALJ determined at step five 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 ...

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