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Pitts v. Berryhill

United States District Court, D. Montana, Billings Division

February 27, 2018

ZAROL LEE PITTS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          TIMOTHY J. CAVAN, United States Magistrate Judge

         On September 7, 2016, Plaintiff Zarol Lee Pitts (“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”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-433. (Doc. 2.) On November 15, 2016, the Commissioner filed an Answer (Doc. 9) and the Administrative Record (“A.R.”). (Doc. 10).

         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. 15.) The motion is fully briefed and ripe for the Court's review. (Docs. 16, 17.)

         For the reasons set forth herein, and after careful consideration of the record and the applicable law, the Court hereby RECOMMENDS that the case be REMANDED for further administrative proceedings.

         I. PROCEDURAL BACKGROUND

         In July 2013, Plaintiff filed an application for DIS benefits, which is the subject of this action. (A.R. 193-199.) Plaintiff alleged he became unable to work on June 14, 2013. (A.R. 193.) The Social Security Administration denied Plaintiff's application initially on November 18, 2013, and upon reconsideration on February 7, 2014. (A.R. 81-91; 92-104.) On February 13, 2014, Plaintiff filed a written request for a hearing. (A.R. 111-12.) An initial hearing was set before Administrative Law Judge Michele M. Kelley (the “ALJ”) on October 21, 2014, but was postponed to allow Plaintiff to obtain an attorney. (A.R. 73-80.) On December 18, 2014, Plaintiff appeared with counsel at the rescheduled hearing, and testified before the ALJ. (A.R. 39-72.) On February 13, 2015, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 18-27.) Plaintiff requested review of the decision on April 15, 2015. (A.R. 7-14.) The ALJ's decision became final on July 8, 2016, when the Appeals Council denied Plaintiff's request for review. (A.R. 1-5.) Thereafter, Plaintiff filed the instant action.

         II. LEGAL STANDARDS

         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) he 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 he 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)).

         III. FACTUAL BACKGROUND

         Plaintiff claims to suffer from severe impairments related to degenerative disc disease in the lumbar spine. He asserts that these impairments render him incapable of performing work he previously performed, or any other substantial gainful employment.

         A. The Hearing

         A hearing was held before the ALJ on December 18, 2014, and the following testimony was provided. (A.R. 39-72.)

         1. Plaintiff's Testimony

         Plaintiff testified that he lives in a house in Laurel Montana, with his wife, two teenage daughters and one of their daughter's friends. (A.R. 46-47.) Plaintiff stated that his last job was working as a delivery driver for Wilcoxson's Ice Cream in Billings, Montana. (A.R. 47.) He explained that his back condition was causing him to have severe trouble with sitting, standing, walking, carrying product, pushing carts, and opening doors. (Id.) Plaintiff stated that his employer tried to make accommodations to keep him working, including replacing the seats in his delivery truck and sending another person on deliveries with him to help carry product. (A.R. 48.) Eventually, Plaintiff's pain was so bad that he resigned. (A.R. 48.)

         Plaintiff testified that his neurosurgeon recommended a hybrid surgery, which would have permitted him to return to work. (A.R. 49.) However, Plaintiff's insurance would not approve the surgery. (A.R. 48-49.) Plaintiff was offered a second type of surgery, but it was expected that even with that surgery, he would have the same restrictions and would not be able to return to work. (A.R. 49.) Plaintiff testified that he had previously had back surgery in 1994, and had previously tried injections, but they did not work. (A.R. 50-51.) He also indicated he has tried physical therapy, but it causes more pain. (A.R. 51.)

         As for daily activities, Plaintiff stated he gets up by 9:00 a.m., and tries to sweep, start a load of laundry, or start doing dishes. (A.R. 51.) In between doing chores, he lies down, then will get back up for a few minutes to finish what he started, or begin another chore. (Id.) Plaintiff estimated that he could typically be up doing a chore for 1-5 minutes before he would need to lie down and rest. (A.R. 52.) Plaintiff stated his rest periods lasted from 20 minutes to 3 hours depending on the level of his pain. (Id.) He indicated he tries to do chores every day, but doesn't always get them done. (Id.) He relies on his daughters for a lot of help. (Id.) Plaintiff is able to make simple meals, such as heating food in a microwave, but cannot stand at a stove to cook a more intricate meal. (A.R. 52-53.) Plaintiff also reads, watches television, looks at Facebook or plays games, but he lays down while he does these activities. (A.R. 54.)

         Plaintiff only drives occasionally, as he finds it too painful to be in a vehicle for more than 15 to 20 minutes. (A.R. 53.) It was noted during the hearing that Plaintiff was “up and down and kneeling and standing and leaning and not a whole lot of sitting.” (A.R. 54.) Plaintiff indicated sitting was difficult for him, and that he usually finds something to lean up against. (Id.) He stated he can walk about 100 feet, and stand for approximately 5-6 minutes before needing to find another position. (A.R. 55.) Plaintiff testified that he cannot lift more than a half-gallon of milk. (Id.) Plaintiff estimated that he spends 85-90 percent of his waking hours lying flat due to pain. (A.R. 57.) Plaintiff stated that it is very seldom that he goes to the grocery store. (A.R. 60.) He reported the last time he had gone to the store alone was approximately 10 days before the hearing. (Id.) He had gone to Walmart to purchase a single cake mix, and afterwards he had to lie down the rest of the night. (Id.)

         Plaintiff stated his pain is in the lower area of his spine, and he gets nerve pain down his hips and thighs. (A.R. 55-56.) The pain affects his ability to walk, stand, kneel, and bend over. (A.R. 56.) Plaintiff also stated his feet go numb daily. (Id.) He indicated he has not fallen, because he is pretty good about catching himself or being close to something so he can get off his feet. (A.R. 57.) Plaintiff also noted that some days he cannot wear shoes because of the pressure they create. (Id.)

         Plaintiff testified that he had not been able to afford his pain medication, and that he had to drop all of his medications except one for his thyroid. (A.R. 58, 62.) He also stated he did not have insurance, and that his wife was unemployed. (A.R. 61.) Plaintiff said that after he stopped working, he relied on his IRA's and savings accounts to pay for his medications for about 3 months, but could not afford to keep it up. (A.R. 63.). The ALJ asked if he had looked into no or low cost prescription programs, and he answered affirmatively. (A.R. 62.) However, Plaintiff stated that he cannot afford it, even if the prescriptions were only $5.00. (Id.) The ALJ appeared incredulous, asking him how much the cake mix cost that he recently purchased from Walmart. (Id.) Plaintiff explained he purchased the cake mix with a food stamp card. (Id.)

         2. Vocational Expert's Testimony

         Delane Hall, a Vocational Expert, also testified before the ALJ. (A.R. 64-71.) The ALJ asked Mr. Hall four hypothetical questions. First, the ALJ asked Mr. Hall to assume a person the same age as Plaintiff, and with the same work history and educational background, who could lift 10 pounds frequently, and 20 pounds occasionally, walk, stand and sit 6 hours in and 8-hour workday, periodically alternate between sitting, standing and walking with normal work breaks, frequently climb ramps and stairs, balance, kneel, crouch and crawl, occasionally climb ladders, ropes and scaffolds and stoop. (A.R. 66.) Mr. Hall testified that the individual would not be able to perform any of Plaintiff's past jobs, but that there would be jobs in the national economy that such a person could do, including small parts assembler, escort driver, and storage rental clerk. (A.R. 67.)

         Second, the ALJ asked Mr. Hall to assume the same person, but with the limitation that the person can walk and stand for only 4 hours in an 8-hour day. (A.R. 68.) Mr. Hall stated that the individual would be able to perform all of the same jobs. (Id.)

         Third, the AJL asked Mr. Hall to assume the same person, but with the limitation that the person could sit for only 4 hours in an 8-hour workday. (Id.) Mr. Hall testified that the individual would be able to do the job of small parts assembler and storage rental clerk, but not escort driver. (Id.)

         Finally, the ALJ asked Mr. Hall to assume the same person, but with the requirement the person would be off task 20% of an 8-hour workday due to pain and associated symptoms, including fatigue. (A.R. 69.) Mr. Hall stated no jobs would be available. (Id.)

         Plaintiff's counsel asked Mr. Hall if it would be an issue for a person to have to change positions every 10 minutes. (A.R. 70.) Mr. Hall indicated it would. (Id.) Plaintiff's counsel then asked Mr. Hall to assume the same hypothetical person described by the ALJ, but who was limited to standing and walking 2 hours total, sitting 2 hours total and the other 4 hours laying down. (A.R. 71.) Mr. Hall stated that it would preclude substantial gainful activity. (Id.) Finally, Plaintiff's counsel asked Mr. Hall to assume a person who had to repeatedly lay down for 20 minute periods. (Id.) Mr. Hall said that would fall under the ALJ's fourth hypothetical, and would preclude work.

         B. Medical Evidence

         The administrative record also includes Plaintiff's medical records from ...


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