Stempke v. Colvin

Filing 17

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; granting 11 Motion for Summary Judgment; adopting Findings and Recommendations re 16 Findings and Recommendations. Signed by Judge Brian Morris on 5/11/2015. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

KEITH J. STEMPKE,

CV-14-45-GF-BMM

Plaintiff,
vs.

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
MAGISTRATE JUDGE

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Keith Stempke filed a complaint seeking disability benefits. (Doc. 1).
Stempke then filed a motion for summary judgment. (Doc. 11). United States
Magistrate Judge John Johnston entered Findings and Recommendations in this
matter on April 16, 2015. (Doc. 16). Neither party filed objections. When a party
makes no objections, the Court need not review de novo the proposed Findings and
Recommendations. Thomas v. Arn, 474 U.S. 140, 149-52 (1986). This Court will
review Judge Johnston’s Findings and Recommendations for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
Judge Johnston determined that the Social Security Administration made a
decision that was not supported by substantial evidence and was based on legal
1

error. The Social Security Administration had concluded that Stempke was capable
of performing work that exists in significant numbers in the national economy.
Stempke testified at a hearing in front of an Administrative Law Judge
(ALJ). At this hearing, Stempke testified that his back pain causes him to spend
most of the afternoon lying down three or four days a week. The ALJ determined
that Stempke’s testimony was not credible. The ALJ failed, however, to set forth
specific, clear, and convincing reasons for discrediting Stempke’s testimony.
The ALJ excluded Stempke’s testimony regarding his need to lie down in
the afternoon three or four days a week from her residual functional capacity
assessment. The ALJ’s failure to provide clear and convincing reasons for
excluding Stempke’s testimony means that the residual functional capacity
assessment was not supported by substantial evidence. Lingenfelter v. Astrue, 504
F.3d 1028, 1040 (9th Cir. 2007). The vocational expert who testified admitted that
none of the potential jobs she had identified would allow Stempke to lie down or
recline outside of normal breaks and lunchtime. Crediting Stempke’s testimony as
true therefore would require the ALJ to find him disabled.
Judge Johnston determined that the record was unclear as to the onset date of
Stempke’s limitation requiring him to lie down during the afternoon three or four
days a week. Judge Johnston recommended that that this case be remanded to the

2

Commissioner with instructions to determine the onset date and to award benefits
retroactive to that date.
This Court finds no clear error in Judge Johnston’s Findings and
Recommendations and adopts them in full. Remanding this case to the
Commissioner with instructions to determine the onset date and to award benefits
retroactive to that date is an appropriate resolution of this matter.
IT IS HEREBY ORDERED:
1.

Judge Johnston’s Findings and Recommendations (Doc. 16) is
ADOPTED IN FULL.

2.

Stempke’s Motion for Summary Judgment (Doc. 11) is GRANTED.

3.

The Commissioner’s decision is REVERSED and this matter is
REMANDED to the ALJ with instructions to determine the onset date
of Stempke’s limitation requiring him to lie down most of the
afternoon three or four days a week and to award benefits retroactive
to that date.

DATED this 11th day of May, 2015.

3