United States District Court, E.D. Washington
MARK A. NEWKIRK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO GRANT, IN PART,
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR
T. RODGERS UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
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.
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.
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 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).
25, 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 since November 13, 2012, the disability
application date. Tr. 22.
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.
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.
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.
four, the ALJ found Plaintiff was unable to perform his past
relevant work as a kitchen helper, material handler and bench
worker. Tr. 33.
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 ...