United States District Court, D. Montana, Great Falls Division
KARA L. MATTHEWS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATIONS
JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
Matthews (“Ms. Matthews”) seeks disability
benefits under the Social Security Act. The Social Security
Administration determined that although she has severe
impairments she is capable of performing past relevant work
as a bus monitor and a housing inspector, as well as other
work that exists in significant numbers in the national
economy, and therefore is not entitled to benefits. That
determination is not supported by substantial evidence and is
based on legal error. Therefore, as set forth below, Ms.
Matthews's Motion for Summary Judgment should be granted
with respect to the ALJ's credibility determination and
Dr. Miller's negative statements, and remanded for
further proceedings. Ms. Matthews' motion should be
denied in all other respects.
vests with this Court pursuant to 42 U.S.C. § 405(g)
(2015). The case is assigned to United States District Court
Judge Brian Morris and referred to the undersigned to submit
findings and recommendations on dispositive motions. (Doc. 6)
Venue in the Great Falls Division of the District of Montana
is proper because Ms. Matthews resides in Cascade County,
Montana. (Doc. 1 at 1-2); 42 U.S.C. 405(g); Local Rule
Matthews applied for Security Disability Insurance Benefits
on March 14, 2012, alleging a disability onset date of March
30, 2011. The Social Security Administration initially denied
her claim in an undated decision (Doc. 5 at 176-78), and upon
reconsideration on April 4, 2013. (Doc. 5 at 183-84). On May
5, 2013, Ms. Matthews timely filed a written request for a
hearing before an administrative law judge
(“ALJ”). (Doc. 5 at 185). The ALJ held a hearing
on February 19, 2014. (Doc. 5 at 39-78).
rendered a decision denying Ms. Matthews's claim on March
7, 2014. (Doc. 5 at 154-65) Ms. Matthews timely requested
that the Social Security Administration review the ALJ's
denial of her claim on May 6, 2014. (Doc. 5 at 13). The
Appeals Council for Social Security Administration granted
Ms. Matthews's request for review and remanded the matter
on November 16, 2015. (Doc. 5 at 170-75). On March 10, 2016,
Ms. Matthews appeared before ALJ Michele Kelly. (Doc. 5 at
79-120). The ALJ issued an unfavorable decision on December
21, 2016. (Doc. 5 at 19-30). On February 2, 2017, Ms.
Matthews filed a request for review. (Doc. 5 at 304-05). In
its Notice on May 16, 2017, the Appeals Council denied Ms.
Matthews's request for review, making the ALJ's
decision is the final decision of the Commissioner. (Doc. 5
October 24, 2017, Ms. Matthews filed an opening brief
requesting the Commissioner's decision be reversed and
remanded. (Doc. 8). On December 29, 2017, the Commissioner
filed a response brief, and Ms. Matthews filed a reply brief
on January 10, 2018. (Docs. 12-13).
in this case is limited. The Court may set aside the
Commissioner's decision only where the decision is not
supported by substantial evidence or where the decision is
based on legal error. Maounis v. Sheckler, 738 F.2d
1032, 1034 (9th Cir. 1984). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence has also been described as “more
than a mere scintilla” but “less than a
preponderance.” Desrosiers v. Sec. of Health and
Hum. Services, 846 F.2d 573, 576 (9th Cir. 1988).
district court must consider the record as a whole, weighing
both the evidence that supports and detracts from the
Commissioner's conclusion. Green v. Sheckler,
803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the
findings not supported by the record, but it may not
substitute its findings for those of the Commissioner.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
claimant is disabled for purposes of the Social Security Act
if the claimant demonstrates by a preponderance of the
evidence that: (1) the claimant has a “medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve months”; and (2) the impairment or impairments
are of such severity that, considering the claimant's
age, education, and work experience, the claimant is not only
unable to perform previous work, but also cannot
“engage in any other kind of substantial gainful work
which exists in the national economy.” Schneider v.
Comm'r of Soc. Sec. Admin., 223 F.3d 968, 974 (9th
Cir. 2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).
regulations provide a five-step sequential evaluation process
for determining whether a claimant is disabled.
Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir.
2001); 20 C.F.R. §§ 404.1520, 416.920. The five
steps of the inquiry 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),
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. §§
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).
Id. at 954. The claimant has the burden of proof for
steps one through four, and the Commissioner has the burden
of proof for step five. Id.
Ms. Matthews' Hearing Testimony
Matthews testified at her October 20, 2016, hearing before
the ALJ. (Doc. 5 at 81-112). Ms. Matthews testified that she
has extreme pain in her low back that “gets
worse” with walking, sitting too long, standing, trying
“to do” groceries, trying to cook, trying to
stand in the shower, and almost everything. (Id. at
Matthews also testified that she has diabetic neuropathy that
causes her to experience shooting, tingling pain in her legs
and feet along with episodes of numbness resulting in her
being unable to feel her legs. (Id. at 88-89). She
testified that she cannot sit for more than 30 minutes before
she has to stand for at least five minutes. (Id. at
89). She testified that when sitting she has to have her left
leg elevated in an effort to decrease her pain. (Id.
at 90). She further testified that when sitting she has to
put all of her weight on her right side because of the pain
she experiences in her left leg. (Id.)
Matthews testified that has problems with standing caused by
her experiencing shooting pain from her low back into her
legs and then her legs going numb. (Id. at 91). She
also testified that when standing she has to lean against
something because she feels insecure on her fee and that she
can only stand for about one minute before she starts to feel
insecure on her feet. (Id. at 91-92).
Matthews testified that she has difficulty walking because
the numbness in her legs makes it seem as though her legs are
not there. (Id. at 92). She testified that she
cannot walk without assistance and even with assistance she
can only walk for ten minutes. (Id. at 93).
Matthews testified that she has problems with lifting and
carrying items because these movements cause her to
experience a pulling in her lower back and butt and on her
shoulders. (Id. at 93-94). She testified that for
one-third of a work day she could “maybe” lift
10-15 pounds. (Id. at 94). She also testified that
she has had surgery on both shoulders and that “small
little things, like scraping your windows really bothers
me.” (Id. at 95-96).
testified that her feet swell, are cold and feel numb and
this makes it hard for her to drive because she has a
difficult time feeling the pedals. (Id. at 96-97).
Matthews also testified that she needs help with the laundry
because the washer and dryer are in the basement of where she
lives but that she does the minor housekeeping like putting
the dishes in the dishwasher and using a light duster that
weighs five pounds. (Id. at 98-99).
testified that she can use a computer, she accesses the
internet through her cellular phone, that she does not
participate in activities outside the home other than going
fishing on a couple of occasions which was very difficult
because of the need to walk, and that she takes care of
herself at home. (Id. at 100-02).
Matthews testified she suffers from depression because her
injuries prevent her from working and her work was her
identity. (Id. at 102). She also testified that she
does not take any medication for her depression but that she
does take medicine to treat her diabetes, a medicine to treat
her cholesterol, and hydrocodone and Gabapentin to treat the
symptoms her neuropathy causes. (Id.)
one, the ALJ decided that Ms. Matthews had not engaged in
substantial gainful activity since April 30, 2011, the
alleged onset date of his disability. (Doc. 5 at 22). At step
two, the ALJ determined that Ms. Matthews has the following
severe impairments: lumbar degenerative disc disease
status-post discectomy at ¶ 4-5; peripheral neuropathy;
obesity. (Id.) At step three, the ALJ determined
that Ms. Matthews did not have an impairment, or combination
of impairments, that met or was medically equal to one of the
listed impairments. (Id. at 23).
considering step four, the ALJ assessed Ms. Matthews as
having the residual functional capacity (RFC) to perform
light work as defined in 20 C.F.R. § 404.1567(b) with
the following limitations: she can lift/carry/push/pull 20
pounds occasionally and 10 pounds frequently; she can walk
and/or stand about 6 hours per 8-hour workday and sit about 6
hours in an 8-hour workday; she can frequently balance,
kneel, crouch, crawl, and climb ramps/stairs; she can
occasionally stoop and climb ladders/ropes/scaffolds; and she