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Hagen v. Berryhill

United States District Court, D. Montana, Billings Division

February 26, 2018

TRISHA L. HAGEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          TIMOTHY J . CAVAN, United States Magistrate Judge

         On 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).

         Presently 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.)

         For the reasons set forth herein, and after careful consideration of the record and the applicable law, the Court makes the following recommendations.


         Plaintiff 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.)

         On 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 action.


         A. Scope of Review

         The 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).

         “Substantial 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)).

         B. Determination of Disability

         To 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.

         The 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), 416.920(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. §§ 404.1520(d), 416.920(d).
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), 416.920(f).

Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         Although 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. § 404.1560(b)(3)).


         Plaintiff 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.

         A. The Hearing

         A hearing was held before the ALJ on April 29, 2014, and the following testimony was provided.

         1. Plaintiff's Testimony

         The 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.)

         Plaintiff 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.)

         For 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.)

         Plaintiff 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.

         Plaintiff 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.)

         Plaintiff 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.

         With 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.)

         2. Cole Hagan Williams

         Cole 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 ...

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