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Ewing v. Commissioner of Social Security

United States District Court, E.D. Washington

May 9, 2018




         BEFORE 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. § 405(g).


         Plaintiff 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.


         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 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.


         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 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. 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); 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), 416.920(a)(4)(v).


         On January 27, 2016, 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 23, 2011, the alleged date of onset. Tr. 21.

         At step 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. Tr. 21.

         At step 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.

         At step 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 extremity.

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. Tr. 33.

         At step 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 ...

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