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Mullins v. Commissioner of Social Security

United States District Court, E.D. Washington

March 20, 2018




         BEFORE 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.


         On 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.

         Administrative 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.


         The 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.


         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. § 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).


         On July 31, 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 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.

         The ALJ 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.

         At step 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 ...

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