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Matthews v. Berryhill

United States District Court, D. Montana, Great Falls Division

February 27, 2018

KARA L. MATTHEWS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATIONS

          JOHN JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         I. SYNOPSIS

         Kara L. 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.

         II. JURISDICTION

         Jurisdiction 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 1.2(c)(2).

         III. STATUS

         Ms. 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).

         The ALJ 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 at 1-6).

         On 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).

         IV. STANDARDS

         A. Court's role

         Review 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).

         The 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. 1999).

         B. Disability criteria

         A 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)).

         The SSA 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), 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).

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.

         V. BACKGROUND

         A. Ms. Matthews' Hearing Testimony

         Ms. 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 87).

         Ms. 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.)

         Ms. 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).

         Ms. 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).

         Ms. 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).

         She 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).

         Ms. 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).

         She 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).

         Ms. 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.)

         B. ALJ's Determination

         At step 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).

         Before 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 must ...


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