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John M. v. Commissioner of Social Security

United States District Court, E.D. Washington

April 18, 2019

JOHN M., Plaintiff,



         BEFORE 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.


         On June 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.

         Administrative 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.


         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 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         He also 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.

         He 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.

         Plaintiff 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.

         Plaintiff 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.

         Medical 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.


         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 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).


         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); 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. ...

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