United States District Court, E.D. Washington
ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL
T. RODGERS UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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).