United States District Court, E.D. Washington
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
T. RODGERS UNITED STATES MAGISTRATE JUDGE
THE COURT are cross-motions for summary judgment.
ECF Nos. 16, 17. Attorney David L. Lybbert represents Robert
Harvey Ewing, Jr. (Plaintiff); Special Assistant United
States Attorney Ryan Ta Lu represents the Commissioner of
Social Security (Defendant). The parties have consented to
proceed before a magistrate judge. ECF No. 6. After reviewing
the administrative record and the briefs filed by the
parties, the Court GRANTS, in part,
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.
protectively filed applications for Supplemental Security
Income (SSI) and Disability Insurance Benefits (DIB) on July
26, 2013, Tr. 130-31, alleging disability since January 1,
2008, Tr. 265, 274, due to bulging disks, right shoulder
rotator cuff, carpel tunnel, obesity, right knee problems,
and cellulitis, Tr. 305. The applications were denied
initially and upon reconsideration. Tr. 171-86, 189-99.
Administrative Law Judge (ALJ) Caroline Siderius held
hearings on May 21, 2015 and November 5, 2015 and heard
testimony from Plaintiff, medical experts, Richard Hutson,
M.D. and Holland Neil Levine, M.D., and vocational expert,
Kimberly Mullinax. Tr. 42-129. At the second hearing,
Plaintiff agreed to amend his onset date to the date he was
last insured for DIB, which was June 30, 2009. Tr. 120, 302.
On December 30, 2015, Plaintiff again amended his date of
onset to November 23, 2011. Tr. 297-300. The ALJ issued an
unfavorable decision on January 27, 2016 dismissing the DIB
claim based on the second amended onset date and finding
Plaintiff failed to establish disability in the SSI claim.
Tr. 20-35. The Appeals Council denied review on March 31,
2017. Tr. 1-6. The ALJ's January 27, 2016 decision became
the final decision of the Commissioner, which is appealable
to the district court pursuant to 42 U.S.C. §§
405(g), 1383(c). Plaintiff filed this action for judicial
review on May 22, 2017. ECF Nos. 1, 4.
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 49 years old at the amended date of onset. Tr. 265. He
completed his GED in 1980. Tr. 306. He completed training in
wildlife and conservation in 1995 and AUTOCAD in 1997.
Id. His reported work history includes the jobs of
crowd management, laborer, and truck driver. Tr. 306, 312.
Plaintiff reported that he stopped working on December 1,
2008 due to his conditions. Tr. 305.
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 Court reviews the ALJ's determinations of law
de novo, deferring to a reasonable interpretation of the
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. 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, 1229-30 (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.
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);
see Bowen v. Yuckert, 482 U.S. 137, 140-42 (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 1098-99.
This burden is met once the claimant establishes that
physical or mental impairments prevent him from engaging in
his previous occupations. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his
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 the claimant can perform exist in the
national economy. Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the
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),
January 27, 2016, 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 23, 2011, the alleged date of
onset. Tr. 21.
two, the ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease - lumbar and cervical
spine; degenerative joint disease - right shoulder, status
post rotator cuff repair; carpal tunnel syndrome, status post
release surgery; degenerative joint disease of both knees,
status post total right knee arthroscopy; and morbid obesity.
three, the ALJ found Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. Tr. 24.
four, the ALJ assessed Plaintiff's residual function
capacity and determined he could perform a range of light
work with the following limitations:
he could lift up to 30 pounds occasionally and 10 pounds
frequently; he could carry up to 10 pounds occasionally; he
could sit up to one hour at a time and six hours total in an
eight-hour day; he could stand up to one hour at a time and
two hours total in an eight-hour day; he could walk up to one
hour total; he could not ambulate on uneven surfaces; he
should avoid unprotected heights, industrial vibration, and
extreme cold; he could occasionally climb ramps or stairs but
never ladders, ropes, or scaffolds; he could engage in
occasional, but not repetitive, crouching, stooping, and
bending; and he could not reach overhead with his right upper
Tr. 26. The ALJ identified Plaintiff's past relevant work
as tractor operator and security guard and concluded that
Plaintiff was not able to perform this past relevant work.
five, the ALJ determined that, considering Plaintiff's
age, education, work experience and residual functional
capacity, and based on the testimony of the vocational
expert, there were other jobs that exist in significant
numbers in the national economy Plaintiff could perform,
including the jobs of assembler (button and notion) and
document preparer. Tr. 34. The ALJ concluded Plaintiff was
not under a disability within the ...