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White v. Berryhill

United States District Court, D. Montana, Billings Division

March 1, 2018

TONYA L. WHITE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         On July 17, 2016, Plaintiff Tonya L. White (“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. 2.) On October 24, 2016, the Commissioner filed an Answer (Doc. 17) and the Administrative Record (“A.R.”). (Doc. 18.)

         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. (Doc. 22.) The motion is fully briefed and ripe for the Court's review. (Docs. 31, 34.)

         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 December 2012. (A.R. 197-203.) Plaintiff alleged she has been unable to work since January 1, 2012. (A.R. 197.) The Social Security Administration denied Plaintiff's application initially on May 1, 2013, and upon reconsideration on October 8, 2013. (A.R. 113-122, 124-134.) On October 23, 2013, Plaintiff filed a written request for a hearing. (A.R. 146-148.) Administrative Law Judge Michael A. Kilroy (the “ALJ”) held a hearing on September 16, 2014. (A.R. 32-111.) On December 18, 2014, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 8-31.) Plaintiff requested review of the decision on February 9, 2015. (A.R. 7.) The ALJ's decision became final on May 17, 2016, when the Appeals Council denied Plaintiff's request for review. (A.R. 1-6.) 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 v. Apfel, 180 F.3d 1094, 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 the severe impairments of deep vein thrombosis (“DVT”), hyperparathyroidism, a learning disorder, depression, anxiety disorder, and eye problems. 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 September 16, 2014, in Billings, Montana, and the following testimony was provided.

         1. Plaintiff's Testimony

         Plaintiff testified that she lives in an apartment in Billings with her two youngest sons, ages fourteen and twelve. (A.R. 42-43.) Both of Plaintiff's sons have been diagnosed with autism; her older son draws disability payments, and Plaintiff has applied for payments for her younger son. (A.R. 48.)

         Plaintiff graduated high school and has attended “a couple of months” of college. (A.R. 44.) She left college because she could not keep up with the pace of her classes, especially math and computer classes. (A.R. 49-50.)

         Plaintiff's last full-time employment was as a cashier at the Golden Corral restaurant in Billings. (A.R. 45.) She reported having back and leg pain due to the bending, walking, and carrying the job required. (A.R. 51.) She also reported having anxiety regarding “how [she] felt that [she] was being treated.” (A.R. 51.) Plaintiff next worked part-time stocking food items at a coffee shop inside St. Vincent Hospital in early 2012. (A.R. 46-47, 53.) She has not worked since then. (A.R. 47.)

         Plaintiff was involved in a vocational rehabilitation program, but expressed concern about the physical requirements of the jobs the program proposed for her, most notably the St. Vincent job. She reported being too tired and hurting to spend time with her children after work, and reported that the job hindered her ability to perform household chores. (A.R. 52, 54.)

         Plaintiff's attorney questioned her about records indicating difficulty following up with her vocational rehab case worker, resulting in what the attorney phrased as “sort of a whole runaround.” (A.R. 54-55.) Plaintiff responded that the case worker would not believe her protestations that the suggested jobs were too difficult. Plaintiff's attorney then asked about Plaintiff having difficulty following up with her treating physicians and missing appointments, but the Plaintiff did not have a response. (A.R. 55.) Plaintiff's attorney then asked about Plaintiff's documented failures to comply with her prescribed medications. (A.R. 56.) Plaintiff responded that she sometimes forgets to take her medications, and other times she had difficulty swallowing her pills. (A.R. 56-57.) Plaintiff claims that she is in a “no-win situation” with respect to her mental health medication, because she feels better after she takes her medication, which results in her “overdo[ing] it physically.” (A.R. 77.)

         Plaintiff stated that she generally wakes up around 6:45 a.m. (A.R. 57-58.) She gets her sons ready for school, and drives them both to school. (A.R. 58.) She then relaxes for a few minutes, and sometimes does household chores, such as laundry, dishes, and feeding cats. (A.R. 58-59.) She goes to the grocery store but prefers to go when there are not a lot of people around. (A.R. 59.) She reports that it is easier to get things done around the house when she is not employed; however, even when she is not employed, her depression makes it difficult to finish household chores. (A.R. 62.) She reports that her depression causes her to put off doing things she should do. (A.R. 62-63.) She picks her younger son up from school around 3:00 p.m.; her older son walks home. (A.R. 64.) She makes the family dinner before her sons go to bed around 9:00 p.m. (A.R. 64-65.) She then goes to sleep around 10:30 p.m. after watching the news. (A.R. 65-66.)

         Plaintiff reports severe sleep problems, resulting from acid reflux, generalized pain, and circulation issues. (A.R. 66.) Her inability to sleep increases her anxiety. (A.R. 66-67.) She often only sleeps three hours per night. (A.R. 67.)

         She reports pain and swelling in her left foot after standing for ten or fifteen minutes. (A.R. 67-68.) She stated that the vocational rehabilitation program never offered her a job that allowed her to be off of her feet. (A.R. 68.) She reports that she does not lift anything heavier than groceries, and even then leaves the heavy grocery bags for her sons to carry. (A.R. 68-69.) Plaintiff states that she gets headaches daily, and that light aggravates her headaches. (A.R. 70-71.) She claims that her biggest impediments to working are her leg pain and her problems interacting with people due to anxiety. She states that she “just can't be around people right now.” (A.R. 72.)

         Plaintiff reports that her children require significant assistance due to their autism, and that her older child has behavior issues at school. (A.R. 80-81.) The children are both involved in programs with the Yellowstone Boys and Girls Ranch (“YBGR”), and they have been assigned a case manager and therapists to assist Plaintiff. (A.R. 82-83.)

         2. Marian F. Martin, Ph.D.

         Dr. Martin is a clinical psychologist. (A.R. 85.) She has reviewed Plaintiff's file and listened to Plaintiff's hearing testimony, but has had no contact with Plaintiff otherwise. (A.R. 85.)

         The ALJ asked Dr. Martin to identify the mental health issues appearing in Plaintiff's medical records. Dr. Martin identified the following issues: ADHD, noting that there is limited evidence in the record to support such a diagnosis (A.R. 86-87); mild learning disability, noting that there is evidence in the record suggesting that the diagnosis stems from a 2007 neuropsychological test, but that the record does not contain the actual test results (A.R. 87); expressive writing and learning disorder NOS, noting that this diagnosis appears incomplete for lack of academic achievement scores; depressive disorder, which “varies between fairly mild but perhaps chronic symptoms to perhaps at times more significant symptoms” (A.R. 88); PTSD, although records indicate that Plaintiff is not experiencing many symptoms (A.R. 88); generalized anxiety disorder (A.R. 88-89); and pain disorder associated with psychological factors and a general medical condition, although Dr. Martin disputes the method for diagnosis thereof (A.R. 89).

         Dr. Martin provided the following opinions as to Plaintiff's limitations: Plaintiff's activities of daily living are impaired mildly, if at all (A.R. 89); mild to moderate impairment in social functioning, noting that Plaintiff is “very sensitive to perceived criticism by other people, and has difficulty being around other people, because she feels that they are being negative toward her” (A.R. 89-90); moderate difficulties in concentration, persistence, and pace (A.R. 90); moderate difficulties in attention, concentration, and immediate processing, although her verbal comprehension score was in the average range (A.R. 90); moderate depression, which is alleviated with medication (A.R. 90-91); and no episodes of decompensation (A.R. 91). Dr. Martin stated that, if Plaintiff's testimony were credited as true, her social functioning and concentration, persistence, and pace difficulties would be elevated to the level of moderate to marked. (A.R. 91.)

         With respect to the other-source letter provided by case manager Marty Webb (discussed at greater length below), Dr. Martin opined that, if the letter were credited as true, she would not expect Plaintiff to be able to take care of her children or to live independently. (A.R. 93-94.)

         3. Vocational Expert's Testimony

         Dwayne Hall, a Vocational Expert (“VE”), also testified before the ALJ. (A.R. 99-108.) The ALJ asked Mr. Fortune five hypothetical questions. First, the ALJ asked Mr. Fortune to make the following assumptions: a person who is 45 years old; has a high school diploma; whose only computer background is with a cash register; who could perform sedentary through medium work, with weight lifting for each category; who can walk and stand for no more than six hours in an eight hour day; unlimited sitting, other than normal breaks; never climbing ladders or scaffolding; all other postural activities occasionally; avoiding exposure to any type of hazard; dealing with the public only one-on-one or in small groups of two or three; only brief, superficial contact with the public; a job requiring limited supervision, once the job is learned; a job that is routine, with no more than occasional learning; a job that is unskilled and entry-level; a job that does not require constant focus for an eight-hour day; a job that does not require high, constant stress, defined as occasional judgment or decision-making; and a job with no fewer than six employees in a small, open worksite, and no more than six employees when the employees work closely together.[1] (A.R. 100-102.) Mr. Hall stated that such an individual would be able to perform Plaintiff's past jobs of cashier/checker, janitor, housekeeper/cleaner, and store laborer. (A.R. 103.)

         Second, the ALJ asked Mr. Hall to assume the same person, but with the additional limitations of alternating between sitting, standing, and walking; walking no more than 30 minutes at a time, standing no more than an hour at a time, and being on one's feet at least four hours in an eight hour day; lifting 20 pounds occasionally, and 10 pounds frequently; and no exposure to extreme cold or vibrations. (A.R. 103.) Mr. Hall said the individual would be able to perform Plaintiff's past ...

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