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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DORLA F. NOKES,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of

Social Security Administration,

Defendant.

CASE NO. C05-5834RBL

REPORT AND

RECOMMENDATION

Noted for September 15, 2006

This matter has been referred to Magistrate Judge J. Kelley Arnold pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4) and as authorized by Mathews, secretary of H.E.W.

v. Weber, 423 U.S. 261 (1976). This matter has been briefed. In response to Plaintiff’s opening brief,

Defendant conceded certain errors and requests that the matter be remanded for further proceedings. After

reviewing the record, Plaintiff’s reply to Defendant’s position, the undersigned recommends that the Court

remand the Administration’s final decision for further consideration.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Dorla Nokes, was born in 1944. She completed High School and has had one year of

training at a beautician school. (Tr.503). In March 1989, she began having problems with her legs, with

numbness from the knees down. She was hospitalized for three days and referred to a neurologist and

physical therapy. (Tr. 504). Mrs. Nokes was admitted to St. Peter Hospital March 7, 1989, with

paresthesias in her lower extremities and an abnormal gait. (Tr. 366-385). Dr. Connolly, the consulting

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neurologist, diagnosed a transverse myelitis2. (Tr. 372- 373). She was discharged on March 10, 1989 on

prednisone. Plaintiff ceased working at that time, but in 1990, she took out a loan and started a gift shop,

which she ran with the help of her husband and children. (Tr. 504). She did not work full-time, but worked

three or four half-days per week. She did not take a salary from the business until 1999, when she took out

$650 per month to pay for the handicapped van she needed to transport herself and her wheelchair to

work. (Tr. 505-506). She usually had two employees, and her granddaughter, son and husband all helped

run the shop. (Tr. 514). Her husband kept the books for the business. (Tr. 515).

During the period January 1996 through September 1998, Dr. Gomez noted: tenderness in the

lower extremities that he attributed to degenerative osteoarthritis of the knees; ear and head pain he

attributed to sinusitis; and IBS symptoms. (Tr. 122-131). On September 21, 1998 he ordered an MRI of

Ms. Noke’s brain. (Tr. 122). The MRI evidenced a possibility of MS or a neoplasm. (Tr. 147). Another

MRI of Mrs. Nokes brain was done on October 10, 2000, evidencing multiple stable deep white matter

lesions, confirming multiple sclerosis (“MS”).

Mrs. Nokes testified that she had MS symptoms during the period she owned the gift shop, when

she had episodes of double vision when she could not drive or read. Plaintiff alleges disability since

December 31, 1989 due to MS and arthritis (Tr. 20). Plaintiff filed her application for Title II disability

insurance benefits in July 2001 (Tr. 42-44). Her application was denied (Tr. 27-29) and Plaintiff requested

reconsideration, amending her alleged onset date to 1989 (Tr. 33-34). Plaintiff’s application was denied

again (Tr. 35-36) and she requested a hearing (Tr. 37-39). Her request for a hearing was dismissed as a

reconsidered determination based on her revised date of alleged onset of disability had not been issued (Tr.

290-93). Another reconsidered determination was issued denying her application (Tr. 300-302) and

Plaintiff requested a hearing (Tr. 303). A hearing was held on March 24, 2005 (Tr. 499-527); Plaintiff,

represented by an attorney, and her husband were present and testified. Also present at the hearing was

Phillip R. Rodriguez, a vocational expert (Tr. 321-22, 520-26). The Administrative Law Judge (ALJ)

issued a decision on April 11, 2005, finding that Plaintiff was not disabled within the meaning of the Social

Security Act because she was capable of performing her past relevant work and, was therefore, not entitled

to benefits (Tr. 19-25). Plaintiff requested review by the Appeals Council (Tr. 13-14) and the Appeals

Council denied Plaintiff’s request for review (Tr. 7-9), making the ALJ’s decision the final decision of the

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Commissioner. See 20 C.F.R. §§ 404.981, 422.210 (2005).

Plaintiff brings the instant action pursuant to 205(g) of the Social Security Act ("the Act"), as

amended, 42 U.S.C. § 405(g), to obtain judicial review of the defendant's final decision denying plaintiff's

application for disability insurance benefits. In her opening brief plaintiff specifically argued: (1) the ALJ

improperly found that Plaintiff had engaged in substantial gainful activity in 1999; (2) the ALJ failed to

properly consider Plaintiff’s MS a severe impairment; (3) the ALJ failed to properly consider whether or

not Plaintiff’s MS met or equaled a Listed disability, specifically Listing 11.09 of the Listings; (4) the ALJ

improperly determined plaintiff’s Residual Functional Capacity; (5) the ALJ failed to properly develop the

record, specifically the need to call a medical expert to testify at Plaintiff’s hearing; (6) the ALJ failed to

properly consider Plaintiff’s credibility and the lay witness evidence; and (7) the ALJ misstated or

misinterpreted the testimony of the vocational expert.

As noted above, Defendant concedes certain errors were made by the administration and asks the

court to remand the matter for further proceedings. Specifically, Defendant states (i) the ALJ should

reconsider whether or not Plaintiff’s work activity in 1999 was substantial gainful activity; (ii) the ALJ

should reassess Plaintiff’s credibility and take the lay testimony into account; (iii) the ALJ needs to reassess

Plaintiff’s residual functional capacity; and (iv) based on the above, the ALJ should complete the disability

determination process, particularly step-four.

Given the fact that the parties agree that the administration erred in its consideration of Plaintiff’s

application for social security benefits, the only issue before the court is whether or not the record is fully

developed and if there is a useful purpose in remanding the matter for further proceedings. The

undersigned finds the records has not been properly developed by the administration and the matter should

be remanded to allow another ALJ the opportunity to properly complete the five-step evaluation process. 

DISCUSSION

The decision whether to remand a case for further proceedings or simply to award benefits is within

the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-1178 (9th Cir. 2000). An award of

benefits is appropriate when no useful purpose would be served by further administrative proceedings, or

when the record has been fully developed and there is not sufficient evidence to support the ALJ’s

conclusion. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). Remand is appropriate where

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additional administrative proceedings could remedy defects. Id.; Bilby v. Schweiker, 762 F.2d 716, 719

(9th Cir. 1985) (citing Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984)). Where remand would only

delay the receipt of benefits, judgment for the claimant is appropriate. Rodriguez, 876 F.2d at 763.

 The Commissioner must following a five-step sequential evaluation process for determining

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. 

Step One: The Commissioner determines whether the claimant is engaged in substantial gainful

activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). If so, the claimant

is not disabled. If not, the Commissioner proceeds to step two. 

Step Two: The Commissioner determines whether the claimant has a medically severe impairment

or combination of impairments that significantly limits her physical or mental ability to do basic work

activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c). If not, the

claimant is not disabled. If so, the Commissioner proceeds to step three. 

Step Three: The Commissioner determines whether the claimant’s impairments meet or equal the

requirements of a listed impairment in the Listing of Impairments, found at 20 C.F.R. pt. 404, subpt. P,

app. 1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If so, the

claimant is disabled. If not, the process continues. Residual Functional Capacity: When a decision cannot

be made based at any of the first three steps of the sequential evaluation process, the Commissioner

determines the claimant’s residual functional capacity (RFC) -- what the claimant can still do despite her

limitations. See 20 C.F.R. §§ 404.1520(e), 404.1545, 416.920(e), 416.945. The Commissioner then

proceeds to step four. 

Step Four: The Commissioner determines whether the claimant can perform her past relevant work.

See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f).

If so, the claimant is not disabled. If not, the Commissioner proceeds to step five. Step Five: The

Commissioner determines whether the claimant can perform any other work existing in significant numbers

in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

If so, the claimant is not disabled. If not, the claimant is disabled. 

Here, the parties agree that the ALJ committed an error when he evaluated Plaintiff’s work

activities in 1999. The issue of Plaintiff’s work activities while she owned and operated the gift shop are

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not easily determined. It is equally difficult to evaluate and determine from the medical record exactly

when Plaintiff’s MS became disabling. Like other ailments, Plaintiff’s MS appears not to have fully

manifested until well after her alleged onset date of disability. As argued by Plaintiff, a medical expert’s

review and testimony is such a case would be useful to the administration’s consideration of this case. 

The court notes that the errors, agreed on by both parties, were made by the ALJ at steps one,

two, three and four of the five-step evaluation process. Remanding the matter will not only allow the

administration the opportunity reconsider its decision at each of these four steps, but it will further allow

the full development and determination of step-five of the process. Accordingly, the matter should be

remanded for further consideration. The administration shall make new findings and conclusions relevant

to each of the five-steps in the evaluation process. 

CONCLUSION

Based on the foregoing, the Court should REMAND the matter for further proceedings, assigning a

different administrative law judge. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules

of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written

objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for

purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by

Rule 72(b), the clerk is directed to set the matter for consideration on September 15, 2006, as noted in the

caption.

DATED this 24th day of August, 2006.

/s/ J. Kelley Arnold 

J. Kelley Arnold

U.S. Magistrate Judge

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