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Ann A. v. Commissioner of Social Security

United States District Court, E.D. Washington

April 22, 2019

CINDY ANN A., Plaintiff,



         BEFORE THE COURT are cross-motions for summary judgment. ECF No. 14, 15. Attorney Rosemary B. Schurman represents Cindy Ann A. (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. 7. After reviewing the administrative record and 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).


         On June 27, 2014, Plaintiff filed an application for a period of disability and Disability Insurance Benefits, Tr. 15, 277-83, and an application for Supplemental Security Income benefits, Tr. 15, 284-92. Plaintiff alleged a disability onset date of June 30, 2008, Tr. 15, 277, 284, 321, due to post traumatic stress disorder, depression, degenerative disc disease, and pain in shoulders and arms. Tr. 106. At the administrative hearing, Plaintiff amended the alleged disability onset date to June 2, 2013. Tr. 17, 56-57. Plaintiff's applications were denied initially and upon reconsideration.

         Administrative Law Judge (ALJ) Michael Gilbert held a video hearing on September 7, 2016, Tr. 15, 50-103, and issued an unfavorable decision on April 28, 2017. Tr. 15-40. The Appeals Council denied review on May 18, 2018. Tr. 1-3. The ALJ's April 28, 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 June 21, 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 June 3, 1958 and was 56 years old on the date the application was filed, June 27, 2014. Tr. 277, 284, 321. She has a high school education. Tr. 62. Plaintiff testified she has been unemployed since 2013 and has not sought employment since that time due to problems with her lower back, as well as depression and chronic obstructive pulmonary disease (COPD). Tr. 63, 77.

         Plaintiff testified that because of her back pain, she is only able to stand in one place for about 15 or 20 minutes before having to move around or sit down, and she is only able to walk about four blocks before she has to stop and take a break. Tr. 79. She testified that she has to lie down once or twice a day, depending on her pain level. Tr. 80. Plaintiff also testified that she can carry a gallon of water and estimated that she can lift about eight pounds. Tr. 80.

         Plaintiff testified that physical therapy and the medication Gabapentin both temporarily relieve her back pain. Tr. 63-64, 78. Although the Gabapentin can be taken up to three times a day, Plaintiff testified that she generally takes it only once a day because she does not like taking a lot of medication. Tr. 64-65. She testified that Aspirin seems to work better than anything else for certain pain. Tr. 66. She testified that she does not take any medications other than Gabapentin and Aspirin for pain. Tr. 66.

         Plaintiff testified that she is in counseling for her mental health issues. Tr. 67. She takes the medication Trazadone every night to help her sleep and for depression. Tr. 67. She testified that she was given Trazadone when she was seeking help with sleep. Tr. 74.

         Plaintiff testified that she has a Serevent inhaler that she uses twice a day for her COPD. Tr. 66. She also uses an Albuterol rescue inhaler as needed. Tr. 66-67. She testified that she smokes anywhere from three quarters of a pack to a pack of cigarettes a day, depending on how much she can afford. Tr. 60, 67.

         Plaintiff testified that she previously worked at two casinos, and the heaviest thing she ever had to lift in that job was the CO2 tank that she guessed may have weighed 50 pounds. Tr. 83. She also worked in a deli as a barista and testified that the heaviest items she ever had to lift in that job were buckets of water that she guessed may have weighed 25 or 30 pounds. Tr. 83-84. She worked at a ribeye restaurant and testified that the heaviest items she ever had to lift in that job were boxes of soda and she guessed they may have weighed 35 to 40 pounds. Tr. 87.

         Plaintiff lives in an apartment. Tr. 58. She has never been married and does not have any children. Tr. 58. Plaintiff testified that she has had 10 DUIs, with the last DUI in 2006, and she has not had a driver's license since that time. Tr. 60, 72. She testified that she likes to read, does the dishes, sweeps the floor, and her boyfriend helps with the laundry because it is too hard for her to take it out of the washer and put it in the dryer. Tr. 62, 82. Plaintiff testified that she and her boyfriend attend church, and they also attend AA meetings. Tr. 73-74. Plaintiff testified that in 2013 she and her boyfriend were living in their vehicle and drove “up and down the coast” from Olympia, Washington to Mexico. Tr. 76-77.


         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. 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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).


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