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Underwood v. Colvin

United States District Court, D. Montana, Billings Division

January 30, 2015

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


CAROLYN S. OSTBY, Magistrate Judge.

Plaintiff Paul Underwood ("Underwood") filed this action seeking judicial review of Defendant Commissioner of Social Security's ("Commissioner") decision denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-433, 1381-1383(c). ECF 2. The issues have been fully briefed. See ECF 18, 19, 25. Having reviewed the Administrative Record ("AR") and the parties' arguments, the Court enters the following order.


Underwood protectively filed his benefits applications on March 26, 2010, alleging that he has been unable to work since January 15, 2010. AR 24, 246-257. He alleges "[h]is ability to perform work related activities is limited by shortness of breath and physical limitations resulting from dilated cardiomyopathy, chronic congestive heart failure and chronic obstructive pulmonary disorder [COPD]; and is limited by mental impairments resulting from depressive disorder, anxiety disorder, posttraumatic stress disorder [PTSD]." ECF 18.

The Social Security Administration ("SSA") denied Underwood's applications initially and upon reconsideration. AR 182-184; 188-191. On June 2, 2011, an Administrative Law Judge ("ALJ") held a hearing. AR 101-153. On June 28, 2011, the ALJ issued a written decision denying Underwood's claims. AR 162-173.

Underwood sought review of the ALJ's decision by the Appeals Council. AR 203. On December 30, 2011, the Appeals Council granted the request for review, vacated the ALJ's decision, and remanded the matter to the ALJ to resolve an issue regarding the exertional level of the jobs cited by the ALJ. AR 178-180. The Appeals Council found this issue necessitated further consideration into "whether the claimant is able to perform other work consistent with his residual functional capacity." AR 179.

On August 1, 2012, the ALJ held a second hearing on Underwood's claims. AR 46-100. On August 13, 2012, the ALJ issued a second written decision denying Underwood's claims. AR 24-41.

On March 28, 2014, the Appeals Council denied Underwood's request for review, and the ALJ's decision became final for purposes of judicial review. AR 1-5; 20 C.F.R. § 404.981 (2013). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).


This Court's review is limited. The Court may set aside the Commissioner's decision only where the decision is not supported by substantial evidence or where the decision is based on legal error. Garcia v. Commr. of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014) (citation omitted); 42 U.S.C. § 405(g). "Substantial evidence is more than a mere scintilla, but less than a preponderance." Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (internal quotation marks omitted)). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks and citation omitted).

The Court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion, and cannot affirm the ALJ "by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation marks and citation omitted). The ALJ is responsible for determining credibility, resolving conflicts in the testimony, and resolving ambiguities in the record. Treichler v. Commr. of Soc. Security, ___ F.3d ___, 2014 WL 7332774, at *6 (9th Cir. 2014) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation omitted).


A claimant is disabled for purposes of the Act if: (1) the claimant has a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, and (2) the impairment or impairments are of such severity that, considering the claimant's age, education, and work experience, the claimant is not only unable to perform previous work, but the claimant cannot "engage in any other kind of substantial gainful work which exists in the national economy." Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).

In determining whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v).

1. The claimant must first show that he or she is not currently engaged in substantial gainful activity. Tackett, 180 F.3d at 1098.

2. If not so engaged, the claimant must next show that he or she has a severe impairment. Id.

3. The claimant is conclusively presumed disabled if his or her impairments meet or medically equal one contained in the Listing of Impairments described in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (hereafter "Listing of Impairments"). Id. If the claimant's impairments do not meet or medically equal one listed in the regulations, the analysis proceeds to the fourth step.

4. If the claimant is still able to perform his or her past relevant work, he or she is not disabled and the analysis ends here. Id. "If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at [this step] and the evaluation proceeds to the fifth and final step." Id. at 1098-99.

5. If the claimant is unable to perform his or her past relevant work due to a "severe impairment (or because [he or she does] not have any past relevant work)" the court will determine if the claimant is able to make an adjustment to perform other work, in light of his or her residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(g). If an adjustment to other work is possible then the claimant is not disabled. Tackett, 180 F.3d at 1099. The claimant bears the burden of proof at steps one through four, but at the fifth step the Commissioner bears the burden of establishing that there is other work in significant numbers in the national economy that the claimant can perform. Id. The Commissioner can meet this burden via the testimony of a vocational expert or ...

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