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Shorter v. Berryhill

United States District Court, D. Montana, Great Falls Division

July 25, 2017

RAY ANTHONY SHORTER, Plaintiff,
v.
NANCY BERRYHILL, Commissioner of Social Security Administration, Defendant.

          ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff Ray Shorter (“Shorter”) initiated this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Acting Commissioner of Social Security (“Commissioner”), who denied Shorter's application for disability benefits and supplemental security income under Titles III and XVI of the Social Security Act. 42 U.S.C. §§ 401-433, 1381-1383(f).

         JURISDICTION

         The Court has jurisdiction under 42 U.S.C. § 405(g). Venue is proper because Shorter resided in Blaine County, Montana when he commenced this action. 28 U.S.C. § 1391(e)(1); L.R. 1.2(c)(3).

         BACKGROUND

         Shorter alleges disability since between March 29, 2008, and June 25, 2009, due to diabetes and depression. (Doc. 8-5 at 13.) The administrative law judge (“ALJ”) determined that Shorter did not qualify for benefits under the Social Security Act in October, 2015. (Tr. 18-44.) The ALJ had determined that Shorter did not qualify for benefits three previous times, but each time the Appeals Council remanded the case back to the ALJ to reconsider certain aspects of the administrative record. (Doc. 16 at 5-6.) The Appeals Council denied Shorter's appeal of the ALJ's fourth unfavorable decision, rendering the ALJ's fourth decision the final decision of the Commissioner for purposes of judicial review. (Tr. 1-7.)

         The ALJ found, in her final decision, that Shorter did not meet the insured status requirements of the Social Security Act. Id. at 23. The ALJ also found that Shorter possesses the severe impairments of major depressive order and dysthymic disorder and that these impairments significantly affect his ability to perform basic work activities. Id. at 24. The ALJ ultimately concluded that Shorter's residual capacity did not preclude him from performing past work as a warehouse worker. Id. at 42.

         The Court referred the case to United States Magistrate Judge John Johnston for findings and recommendations. Judge Johnston entered his Findings and Recommendations on March 15, 2017. (Doc. 16.) Judge Johnston concluded that the Commissioner's decision should be affirmed because it was supported by substantial evidence and was free of legal error. Id. at 30. Shorter filed an objection to the Findings and Recommendations on March 28, 2017. (Doc. 17.)

         STANDARD OF REVIEW

         The Court reviews de novo findings and recommendations to which parties make objections. 28 U.S.C. § 636(b)(1)(C).

         DISCUSSION

         Shorter argued that the Commissioner's decision should be reversed because the ALJ erred: (1) by failing to reasonably assess Shorter's severe impairments by neglecting to consider the impact of his obesity on his depressive disorder, (2) by failing to properly determine his residual functional capacity by discounting Shorter's subjective complaints and failing to give proper weight to the opinions of treating mental health providers and other sources, (3) by failing to support the finding that Shorter's residual capacity did not preclude him from performing past work as a warehouse worker, (4) by denying Shorter's request for a prehearing conference, and (5) by violating the local rules in neglecting to include a statement of facts in the Commissioner's reply brief. (Doc. 9 at 1.)

         A. Severe Impairments

         The ALJ determined that Shorter possesses the severe impairments of major depressive disorder and dysthymic disorder. (Tr. 24.) Shorter argues that the ALJ improperly omitted obesity as a severe impairment. (Doc. 9 at 1.) The ALJ acknowledged that the record indicated that Shorter proved obese. (Tr. 25.) The ALJ also found, however, that Shorter's medical records reflect a body mass index score in the low 30s, which represents a limited level of obesity. Id. The ALJ reasonably found no evidence that Shorter's obesity restricted his ability to perform basic work activities. Id. The Ninth Circuit held in Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005), that an error in neglecting to find obesity as a severe impairment ...


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