United States District Court, D. Montana, Billings Division
TRISHA L. HAGEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE
TIMOTHY J . CAVAN, United States Magistrate Judge
April 7, 2016, Plaintiff Trisha L. Hagen
(“Plaintiff”) filed a complaint pursuant to 42
U.S.C. § 405(g) of the Social Security Act, requesting
judicial review of the final administrative decision of the
Commissioner of Social Security (“Commissioner”)
regarding the denial of Plaintiff's claim 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, 1381-1383f. (Doc. 1.) On July 1, 2016,
the Commissioner filed an Answer (Doc. 7) and the
Administrative Record (“A.R.”). (Doc. 8).
before the Court is Plaintiff's motion for summary
judgment, seeking reversal of the Commissioner's denial
and remand for an award of disability benefits, or
alternatively for further administrative proceedings. (Doc.
17.) The motion is fully briefed and ripe for the Court's
review. (Docs. 18, 19.)
reasons set forth herein, and after careful consideration of
the record and the applicable law, the Court makes the
filed an application for DIB and SSI benefits in June, 2012.
(A.R. 199-212.) Plaintiff alleged she has been unable to work
since January 15, 2011. (A.R. 199.) The Social Security
Administration denied Plaintiff's second application
initially on April 12, 2013, and upon reconsideration on July
5, 2013. (A.R. 150-152; 155-159.)
August 5, 2013, Plaintiff filed a written request for a
hearing before an Administrative Law Judge. (A.R. 163.) A
hearing was held on April 29, 2014 before Administrative Law
Judge Louis M. Catanese (the “ALJ”). (A.R.
47-99.) On May 23, 2014, the ALJ issued a written decision
finding Plaintiff not disabled. (A.R. 27-41.) Plaintiff
requested review of the decision on June 30, 2014. (A.R.
21-23.) The ALJ's decision became final on June 30, 2015,
when the Appeals Council denied Plaintiff's request for
review. (A.R. 17-20.) Thereafter, Plaintiff filed the instant
Scope of Review
Social Security Act allows unsuccessful claimants to seek
judicial review of the Commissioner's final agency
decision. 42 U.S.C. §§ 405(g), 1383(c)(3). The
scope of judicial review is limited. The Court must affirm
the Commissioner's decision unless it “is not
supported by substantial evidence or it is based upon legal
error.” Tidwell v. Apfel, 161 F.3d 599, 601
(9th Cir. 1999). See also Bayliss v. Barnhart, 427
F.3d 1211, 1214 n.1 (9th Cir. 2005) (“We may reverse
the ALJ's decision to deny benefits only if it is based
upon legal error or is not supported by substantial
evidence.”); Flaten v. Sec'y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
evidence is more than a mere scintilla but less than a
preponderance.” Tidwell, 161 F.3d at 601
(citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th
Cir. 1997)). “Substantial evidence is relevant evidence
which, considering the record as a whole, a reasonable person
might accept as adequate to support a conclusion.”
Flaten, 44 F.3d at 1457. In considering the record
as a whole, the Court must weigh both the evidence that
supports and detracts from the ALJ's conclusions.
Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985);
Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.
1975)). The Court must uphold the denial of benefits if the
evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ's decision.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)
(“Where evidence is susceptible to more than one
rational interpretation, it is the ALJ's conclusion that
must be upheld.”); Flaten, 44 F.3d at 1457
(“If the evidence can reasonably support either
affirming or reversing the Secretary's conclusion, the
court may not substitute its judgment for that of the
Secretary.”). However, even if the Court finds that
substantial evidence supports the ALJ's conclusions, the
Court must set aside the decision if the ALJ failed to apply
the proper legal standards in weighing the evidence and
reaching a conclusion. Benitez v. Califano, 573 F.2d
653, 655 (9th Cir. 1978) (quoting Flake v. Gardner,
399 F.2d 532, 540 (9th Cir. 1968)).
Determination of Disability
qualify for disability benefits under the Social Security
Act, a claimant must show two things: (1) she suffers from a
medically determinable physical or mental impairment that can
be expected to last for a continuous period of twelve months
or more, or would result in death; and (2) the impairment
renders the claimant incapable of performing the work she
previously performed, or any other substantial gainful
employment which exists in the national economy. 42 U.S.C.
§§ 423(d)(1)(A), 423(d)(2)(A). A claimant must meet
both requirements to be classified as disabled. Id.
Commissioner makes the assessment of disability through a
five-step sequential evaluation process. If an applicant is
found to be “disabled” or “not
disabled” at any step, there is no need to proceed
further. Ukolov v. Barnhart, 420 F.3d 1002, 1003
(9th Cir. 2005) (quoting Schneider v. Comm'r of the
Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000)).
The five steps are:
1. Is claimant presently working in a substantially gainful
activity? If so, then the claimant is not disabled within the
meaning of the Social Security Act. If not, proceed to step
two. See 20 C.F.R. §§ 404.1520(b),
2. Is the claimant's impairment severe? If so, proceed to
step three. If not, then the claimant is not disabled.
See 20 C.F.R. §§ 404.1520(c), 416.920(c).
3. Does the impairment “meet or equal” one of a
list of specific impairments described in 20 C.F.R. Part 220,
Appendix 1? If so, then the claimant is disabled. If not,
proceed to step four. See 20 C.F.R. §§
4. Is the claimant able to do any work that he or she has
done in the past? If so, then the claimant is not disabled.
If not, proceed to step five. See 20 C.F.R.
§§ 404.1520(e), 416.920(e).
5. Is the claimant able to do any other work? If so, then the
claimant is not disabled. If not, then the claimant is
disabled. See 20 C.F.R. §§ 404.1520(f),
Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.
the ALJ must assist the claimant in developing a record, the
claimant bears the burden of proof during the first four
steps, while the Commissioner bears the burden of proof at
the fifth step. Tackett, 180 F.3d at 1098, n.3
(citing 20 C.F.R. § 404.1512(d)). At step five, the
Commissioner must “show that the claimant can perform
some other work that exists in ‘significant
numbers' in the national economy, taking into
consideration the claimant's residual functional
capacity, age, education, and work experience.”
Id. at 1100 (quoting 20 C.F.R. §
claims to suffer from severe impairments of asthma,
fibromyalgia, shoulder arthritis, and bipolar disorders. She
asserts that these impairments render her incapable of
performing work she previously performed, or any other
substantial gainful employment.
hearing was held before the ALJ on April 29, 2014, and the
following testimony was provided.
Plaintiff testified at the hearing before the ALJ in
Billings, Montana. (A.R. 53-86.) Plaintiff testified that she
lives with her six-year-old daughter in Livingston, Montana
in a mobile home on ten acres of property belonging to her
son. (A.R. 53-55.) Her son resides in a home next door to
her. (A.R. 54.)
has a valid driver's license, and testified that she
usually drives once a day to pick up her daughter from school
(ten miles) or from the school bus (one mile). (A.R. 57-58.)
Plaintiff stated she is able to handle self-care, such as
showering and dressing. (A.R. 59.) She generally is able to
cook, although she testified that some days her hands hurt
too much. (A.R. 59.) On “good days, ” Plaintiff
cleans her house, and she at least attempted to garden in
2013. (A.R. 59.) She and her son have six dogs on the
property, and she is able to ensure that they have food and
water. (A.R. 60.) Two horses are also kept on the property,
but Plaintiff testified that she only cares for them when her
son is not around, and even then only sparingly. (A.R. 61.)
She helps her daughter with homework and with her nightly
bath. (A.R. 62.)
recreation, Plaintiff stated she likes to draw but cannot do
so anymore, and instead colors for a half hour per week.
(A.R. 61-62.) She watches television, and plays games on the
computer when her hands do not hurt. (A.R. 62.) She gets
coffee with a friend roughly twice per month. (A.R. 62.)
worked for the railroad from 1995 until she was laid off in
1998 or 1999. (A.R. 69.) After being laid off, Plaintiff
worked as an electrician in a sawmill from 2000 to 2004.
(A.R. 67.) She then worked as a bartender at the 49 Diner and
Casino in Livingston from 2005 until January of 2011, at
which time her position was eliminated. (A.R. 65-67.) After
an unsuccessful attempt to return to school, Plaintiff
attempted to work three to four hours per week at a
greenhouse for roughly one month in 2012. (A.R. 64-65.) She
has not been employed since then.
testified the “inconsistency with [her] pain” -
both in location and intensity - is the biggest impediment to
gainful employment. (A.R. 69.) She can have good days, but
then may not have another good day for three or four days.
(A.R. 70.) Her level of pain is positively correlated with
her level of activity in prior days, such that a high level
of physical activity one day will result in greater pain the
next day. (A.R. 71.) She reports suffering from headaches
five times per week, with some lasting as long as eight
hours. (A.R. 71.) Plaintiff uses a nebulizer every day to
treat her asthma. (A.R. 72.)
reports that she was diagnosed as bipolar in 2004. (A.R. 73.)
She has not taken medication for her bipolar disorder since
2007 when she stopped taking Zoloft after she became pregnant
with her daughter. She reports that medicines she tried other
than Zoloft made her suicidal. (A.R. 73.) Plaintiff reports
memory and concentration problems secondary to her
fibromyalgia (“fibro-fog”), and that she gets
irritated with other people easily. A.R. 74.
respect to her physical capabilities, Plaintiff testified
that she can sit for a half hour to an hour; stand for over
an hour, on a good day; walk long enough to shop at the
grocery store; and lift fifty pounds on a good day, and ten
pounds on a bad day. (A.R. 81-82.) She estimates that she has
a minimum of four bad days per week. (A.R. 82.)
Cole Hagan Williams
Williams is Plaintiff's son. (A.R. 86.) He has contact
with her every day. (A.R. 86.) He lived with the Plaintiff in
her mobile home until 2014, when he moved into a house next
door. (A.R. 87.) Mr. Williams reported that Plaintiff
“can do anything” on some days, including working
with horses or working on fences, but that once a week