United States District Court, D. Montana, Missoula Division
ERIC J. GREEN, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Jeremiah C. Lynch United States Magistrate Judge
Eric Green brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner
of Social Security denying his application for disability
insurance benefits and supplemental security income benefits
under Titles II and XVI of the Social Security Act, 42 U.S.C.
§§ 401-433, §§ 1382-1385. Green alleges
disability since May 5, 2011, due to depression, bipolar
disorder, drug abuse (meth), back problems, and a head
injury. Green's application was denied initially and on
reconsideration, and he requested an administrative hearing.
Green appeared with a non-attorney representative at the
administrative hearing in October 2012. In February 2013, an
ALJ issued a decision finding Green not disabled within the
meaning of the Act. The Appeals Council denied Green's
request for review, and Green sought judicial review. In
April 2015, this Court remanded Green's case for further
proceedings. Green appeared with counsel at the hearing on
remand in October 2015, and in December 2015 the same ALJ
issued a decision finding Green not disabled within the
meaning of the Act. The Appeals Council denied Green's
request for review, making the ALJ's decision the
agency's final decision for purposes of judicial
review. (Tr. 4-8). Jurisdiction vests with this
Court pursuant to 42 U.S.C. § 405(g).
was 40 years old at the time of his alleged onset date, and
47 at the time of the ALJ's decision on remand.
Standard of Review
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. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.l (9th Cir. 2005); Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
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); Widmarkv. Barnhart, 454 F.3d 1063,
1070 (9th Cir. 2006).
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities." Edlundv. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold
the Commissioner's findings "if supported by
inferences reasonably drawn from the record." Batson
v. Commissioner of Social Security Administration, 359
F.3d 1190, 1193 (9th Cir. 2004). "[I]f
evidence exists to support more than one rational
interpretation, " the Court "must defer to the
Commissioner's decision." Batson, 359 F.3d
at 1193 (citing Morgan v. Commissioner, 169 F.3d
595, 599 (9th Cir. 1999). This Court "may not
substitute its judgment for that of the Commissioner."
Widmark, 454 F.3d at 1070 (quoting Edlund,
253 F.3d at 1156).
Burden of Proof
establish disability, a claimant bears "the burden of
proving an 'inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which...has lasted or can be
expected to last for a continuous period of not less than 12
months.'" Batson, 359 F.3d at 1193-94
(quoting 42 U.S.C. § 423(d)(1)(A)).
determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. 20 C.F.R.
§ 404.1520. The claimant bears the burden of
establishing disability at steps one through four of this
process. Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005). At the first step, the ALJ will
consider whether the claimant is engaged in "substantial
gainful activity." 20 C.F.R. § 404.1520(a)(4)(I).
If not, the ALJ must determine at step two whether the
claimant has any impairments that qualify as
"severe" under the regulations. 20 C.F.R. §
404.1520(a)(4)(ii). If the ALJ finds that the claimant does
have one or more severe impairments, the ALJ will compare
those impairments to the impairments listed in the
regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the ALJ
finds at step three that the claimant has an impairment that
meets or equals a listed impairment, then the claimant is
considered disabled. 20 C.F.R. § 404.1520(a)(iii).
however, the claimant's impairments do not meet or equal
the severity of any impairment described in the Listing of
Impairments, then the ALJ must proceed to step four and
consider whether the claimant retains the residual functional
capacity (RFC) to perform his or her past relevant work. 20
C.F.R. § 404.1520(a)(4)(iv). If the claimant establishes
an inability to engage in past work, the burden shifts to the
Commissioner at step five to establish that the claimant can
perform other work in the national economy. 20 C.F.R. §
found at step one that Green meets the insured status
requirements of the Act through March 31, 2017, and had not
engaged in substantial gainful activity since his alleged
onset date. (AR 512). At step two, the ALJ found that Green
had the following severe impairments: back disorder, organic
mental disorder, borderline personality disorder, attention
deficit hyperactivity disorder (ADHD) and affective disorder.
(AR 511). The ALJ concluded at step three that Green did not
have an impairment or combination of impairments that meets
or medically equals any impairment described in the Listing
of Impairments. (AR 513). The ALJ also found that Green's
subjective testimony was only partially credible, and
concluded he had the residual functional capacity to perform
a reduced range of light work. (AR 515). The ALJ found at
step four that Green could not perform any past relevant
work, but concluded at step five that he was not disabled
because he was capable of semi-skilled light work as a bench
assembler or assembly worker, and unskilled light work as an
assembler of plastic hospital products. (AR 522-23).
argues the ALJ erred by not including major depressive
disorder, bipolar disorder, and degenerative disc disease as
severe impairments at step two. He points out that the ALJ
considered those impairments severe in his first decision,
and maintains he should have included them in the most recent
decision as well.
the ALJ did not use exactly the same terms, he identified
essentially the same severe impairments. The ALJ identified
Green's degenerative disc disease as a back disorder, his
major depressive disorder as an affective disorder, and
referred to what he previously called a bipolar disorder as
an organic mental disorder and borderline personality