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. 14,
15. Attorney Dana Chris Madsen represents John M.
(Plaintiff); Special Assistant United States Attorney Franco
L. Becia 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 briefs filed by the parties, the
Court GRANTS Defendant's Motion for Summary Judgment and
DENIES Plaintiff's Motion for Summary Judgment.
11, 2015, Plaintiff filed an application for a period of
disability and Disability Insurance Benefits, Tr. 20, 218-19,
and an application for Supplemental Security Income benefits,
Tr. 20, 220-25. Plaintiff alleged a disability onset date of
June 28, 2013, Tr. 20, 218, 220, due to Chronic Pain, Chronic
Neck Pain, Left Shoulder and Arm Pain, Degenerative Disc
Disease, Chronic Tendinopathy, Vein Issues, and Tingling in
the Legs. Tr. 89, 287. Plaintiff's applications were
denied initially and upon reconsideration.
Law Judge (ALJ) Mark Kim held a hearing on February 21, 2017,
Tr. 39-86, and issued an unfavorable decision on April 6,
2017. Tr. 20-33. The Appeals Council denied review on
February 16, 2018. Tr. 1-5. The ALJ's April 6, 2017,
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 April 17, 2018. ECF No. 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 born on December 9, 1969 and was 45 years old on the date
the application was filed, June 11, 2015. Tr. 20, 89, 218,
220. Plaintiff earned a bachelor's degree in management
information systems from Washington State University. Tr. 43,
70, 255. He was last employed in 2013 as a warehouse worker
and testified that he only worked at that job for three days
before he was in a motor vehicle accident. Tr. 68-69.
Plaintiff testified that he also worked as computer desktop
support for about a month, and as a cashier at Wal-Mart for
about six months. Tr. 69. Plaintiff testified that he held
numerous other jobs for short periods of time. Tr. 69-74.
reported that he is unable to work due to injuries that he
received from a motor vehicle accident on June 28, 2013. Tr.
59, 257. He testified that, as a result of the accident, he
incurred injuries to his neck, mid to lower back, left
shoulder, and arm. Tr. 59. He testified that the injuries
from the accident have gotten worse over the years. Tr. 60.
testified that his left shoulder is in pain all the time. Tr.
56. He testified that he has limited use of his left
shoulder, and although he can reach forward, he can only
reach above his head with his right hand. Tr. 55. He
testified that he does not lift with his left arm, but he can
lift five or 10 pounds with his right arm. Tr. 63.
testified that his back and neck are in pain all the time,
even with medication. Tr. 56. He testified that he cannot
walk one block because he does not have energy and has
constant back pain. Tr. 61. He testified that he can bend
about halfway if he is sitting in a chair but cannot stoop or
squat because it is too painful. Tr. 62. He testified that he
can sit in a chair for approximately four hours or less. Tr.
64. He testified that he uses a cane prescribed by the
Department of Veterans Affairs (VA) hospital in order to get
relief from the pressure on his spine. Tr. 44, 57. Plaintiff
testified that he wears a back brace for support when he goes
out. Tr. 45, 60.
testified that he has recently been experiencing pain and
numbness in his left leg, although he has not seen a doctor
for his leg pain because he has not been able to get an
appointment. Tr. 57. He testified that his leg is numb,
tingly, and sometimes burns. Tr. 61. Plaintiff testified that
he has trouble sleeping because he is in so much pain. Tr.
64. He testified that he has had migraine headaches since
before the motor vehicle accident. Tr. 65. The migraine
headaches last anywhere from half a day to a couple of days
and he cannot see, stand, or concentrate when he gets one of
these headaches. Tr. 65.
testified that physical therapy only helped temporarily and
chiropractic treatment did not help. Tr. 64. Plaintiff
testified that he had an injection in his left shoulder but
the injection made his shoulder worse. Tr. 58-59.
testified that he suffers from depression caused by mental,
physical, and verbal abuse that he experienced during the six
months that he served in the U.S. Navy. Tr. 58. Plaintiff
testified that he tried to kill himself during his service,
and he received an honorable medical discharge. Tr. 58-59.
Plaintiff testified that he also tried to kill himself the
year before the administrative hearing. Tr. 59. He testified
that he had been receiving regular mental health counseling
but he stopped treatment. Tr. 44, 67. In his June 2015
Function Report, Plaintiff noted that he is able to pay
attention for about four hours and he follows written and
spoken instructions well. Tr. 262-63. He reported that he
gets along well with authority figures and does not have any
problems getting along with family, friends, neighbors, or
others. Tr. 262-63.
lives alone in an apartment. Tr. 43, 257. He testified that
he is not able to drive a car. Tr. 57, 65. Plaintiff
testified that he does not do chores and does laundry
approximately once every six months or once every year. Tr.
56, 67. He testified that he cooks his meals in the
microwave, and he cannot go grocery shopping because he has
someone do that for him. Tr. 56, 67.
expert John Kwock, M.D., testified at the administrative
hearing that Plaintiff was capable of light work. Tr. 45-53.
Dr. Kwock testified that Plaintiff has degenerative disc and
degenerative joint disease of the cervical spine of a
relatively mild degree, Tr. 46, as well as degenerative disc
and degenerative joint disease of the lumbar spine of a
relatively mild extent. Tr. 46. Dr. Kwock testified that the
findings in the radiological studies suggest that the
degenerative changes that Plaintiff has in the cervical spine
are relatively mild and in low grade as far as intensities
are concerned. Tr. 46-47 (citing Tr. 737, 762-63, 766, 991,
779). He testified that the terms used in the examination
results for Plaintiff's lumbar spine noted minimal
degenerative changes. Tr. 48. Dr. Kwock testified that
Plaintiff had tendonitis in his left shoulder four years
prior to the hearing, but there was no further evidence in
the record that the tendonitis remained. Tr. 46. He testified
that Plaintiff's shoulder was documented in x-rays and an
MRI done in December 2013, and the radiologist described the
tendinopathy in the supraspinatus tendon as moderately
severe. Tr. 48. He testified that there were no subsequent
radiological studies of the shoulder to document the extent
of the tendonitis that was present back in 2013. Tr. 48.
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 Soc. 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 the claimant
can perform other jobs present in significant numbers in the
national economy. Batson v. Commissioner of Soc. Sec.