United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
T. RODGERS UNITED STATES MAGISTRATE JUDGE.
THE COURT are cross-motions for summary judgment.
ECF No. 15, 19. Attorney Jeffrey Schwab represents Terry Alan
Mullins (Plaintiff); Special Assistant United States Attorney
Daphne Banay represents the Commissioner of Social Security
(Defendant). The parties have consented to proceed before a
magistrate judge. ECF No. 8. 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.
October 1, 2012, Plaintiff filed applications for disability
insurance benefits and supplemental security income benefits,
alleging disability since July 12, 2009, due to back
condition, anxiety, depression, dysuria, hematuria, and joint
and muscle pain/weakness. Tr. 207, 209, 243. At the time of
the administrative hearing, Plaintiff amended the alleged
onset date of disability to October 1, 2012, the application
date. Tr. 47. Plaintiff's applications were denied
initially and upon reconsideration.
Law Judge (ALJ) Jesse K. Shumway held a hearing on June 26,
2015, Tr. 38-98, and issued an unfavorable decision on July
31, 2015, Tr. 12- 28. The Appeals Council denied review on
February 6, 2017. Tr. 1-7. The ALJ's July 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
March 31, 2017. ECF No. 1, 3.
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 born on November 11, 1965, and was 46 years old on the
amended alleged onset date, October 1, 2012. Tr. 47, 207,
209. He completed high school and one year of college. Tr.
244. Plaintiff's disability report indicates he stopped
working on June 1, 2011, because of his condition(s). Tr.
243. Plaintiff testified at the June 26, 2015, administrative
hearing that he applied for work in late 2012 or 2013 at an
auto parts store, in waste management, and for a cleaning
company, but he had not been successful in securing
employment. Tr. 76-78. He stated he continued to look for
work and believed he would be able to work at an auto parts
store. Tr. 78-79, 85. Plaintiff later clarified he felt he
could stand at a desk, answer phones, answer questions, and
operate a point of sale computer at an auto parts store, but
would not be able to physically retrieve and deliver heavy
auto parts to customers. Tr. 85-87.
testified he suffered back pain “24 hours a day, seven
days a week.” Tr. 61. He indicated it is typical he
will need to lie down two to three times during the day, with
an icepack, for 30 minutes to an hour each time due to his
back pain. Tr. 66-67. He stated he also has at least three or
four “bad days” per month where it is difficult
to even get out of bed and do basic activities. Tr. 62-63.
also testified he has diabetes and has had difficulty
controlling his diabetes. Tr. 64. As a result, he had
neuropathy in his feet and the occurrence of six or seven
sebaceous cysts that he has had to have drained. Tr. 65. He
stated he also experienced right arm/shoulder and bilateral
knee pain as well as a loss of sensation/feeling in his right
hand. Tr. 74-75, 80, 81, 83. There was no mention or
discussion of any symptoms related to mental impairments at
the time of the administrative hearing.
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. § 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 1098-1099. This
burden is met once a claimant establishes that physical or
mental impairments prevent him from engaging in his previous
occupation. 20 C.F.R. § 416.920(a)(4). If a claimant
cannot do his past relevant work, the ALJ proceeds to step
five, and the burden shifts to the Commissioner to show that
the claimant can perform other jobs present in significant
numbers 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. § 416.920(a)(4)(v).
31, 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 the amended alleged onset date,
October 1, 2012. Tr. 14. At step two, the ALJ determined
Plaintiff had the following severe impairments: degenerative
disc disease, obesity, bilateral knee degeneration, right
shoulder impairment, and right hand numbness. Tr. 15. 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. 19.
assessed Plaintiff's Residual Functional Capacity (RFC)
and determined he could perform light exertion level work
with the following limitations: he is able to stand and walk
only four hours in an eight-hour workday; he cannot use his
right hand when walking because of his use of a cane; he is
able to sit only one hour at a time, followed by a minute or
two of standing and stretching; he can only occasionally
reach overhead on the right and frequently handle and finger
with the right hand; he cannot climb ladders, ropes or
scaffolds and only occasionally perform other postural
activities; he cannot have concentrated exposure to extreme
cold or heat or vibration and can have no exposure to hazards
such as unprotected heights and moving mechanical parts; and
he cannot operate a motor vehicle. Tr. 20.
four, the ALJ determined Plaintiff could not perform his past
relevant work as an automobile mechanic. Tr. 27. However, 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 could perform
other jobs present in significant numbers in the national
economy, including the jobs of mail sorter, production
assembler and inspector, hand packager. Tr. 27-28. The ALJ
thus concluded Plaintiff was not under a disability within
the meaning of ...