United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
TIMOTHY J. CAVAN, United States Magistrate Judge
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).
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.)
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
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
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) 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.
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 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
hearing was held before the ALJ on December 18, 2014, and the
following testimony was provided. (A.R. 39-72.)
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.
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.)
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.)
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.)
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.)
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.)
Vocational Expert's Testimony
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.)
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.
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.
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
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.
administrative record also includes Plaintiff's medical
records from ...