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McGee v. Berryhill

United States District Court, D. Montana, Billings Division

March 19, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          TIMOTHY J. CAVAN United States Magistrate Judge.

         On April 11, 2016, Plaintiff Kortney McGee (née Roberts) (“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. 1.) The Commissioner filed an Answer on June 20, 2016 (Doc. 7), and the Administrative Record (“A.R.”) on June 21, 2016. (Doc. 8.)

         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. 10.) The motion is fully briefed and ripe for the Court's review. (Docs. 11, 14.)

         For the reasons set forth herein, and after careful consideration of the record and the applicable law, the Court enters the following order reversing the Commissioner's decision and remanding the matter for further proceedings.


         Plaintiff filed an application for DIB and SSI benefits in October 2007. (A.R. 110-117.) Plaintiff alleged she has been disabled since her birth on September 11, 1990. (A.R. 110.) The Social Security Administration denied Plaintiff's application initially on March 21, 2008, and upon reconsideration on September 10, 2008. (A.R. 63-70.) On October 8, 2008, Plaintiff filed a written request for a hearing. (A.R. 78-80.) Administrative Law Judge Louis J. Volz, III (“ALJ Volz”) held a hearing on October 20, 2009 (the “2009 Hearing”). (A.R. 33-62.) On January 2, 2010, ALJ Volz issued a written decision finding Plaintiff not disabled. (A.R. 13-32.) Plaintiff requested review of the decision on March 22, 2010. (A.R. 7-8.) ALJ Volz's decision became final on July 19, 2010, when the Appeals Council denied Plaintiff's request for review. (A.R. 1-6.)

         Plaintiff appealed the denial of her request for benefits to the U.S. District Court for the District of Montana, Great Falls Division on September 19, 2011. See McGee v. Astrue, CV 11-63-GF-SEH. U.S. Magistrate Judge Keith Strong entered Findings & Recommendations on June 14, 2012, recommending to presiding District Court Judge Sam Haddon that ALJ Volz's decision be affirmed. McGee, CV 11-63-GF-SEH-RKS (D. Mont. June 14, 2012 (Doc. 21)). Judge Haddon adopted Judge Strong's Findings & Recommendations on July 9, 2012. McGee, CV 11-63-GF-SEH (D. Mont. July 9, 2012 (Doc. 23)). Plaintiff timely appealed to the Ninth Circuit Court of Appeals.

         The Ninth Circuit affirmed in part and reversed in part. See McGee v. Colvin, 556 Fed.Appx. 616 (9th Cir. 2014). The Ninth Circuit affirmed ALJ Volz's step-three finding that McGee did not meet the regulatory listings for cerebral palsy. Id. at 617-618. However, the Ninth Circuit reversed ALJ Volz's step-five determination of Plaintiff's residual functional capacity (“RFC”). The Ninth Circuit explained that ALJ Volz reasonably concluded that some of McGee's testimony with respect to her symptoms was not fully credible, but found that ALJ Volz's “broad finding that McGee did not have any significant non-exertional limitations is not supported by substantial evidence and specific, clear and convincing reasons.” Id. at 618 (emphasis in original) (quotations omitted). The Ninth Circuit provided several reasons for this conclusion.

         First, while evidence in the record suggested that Plaintiff's urinary incontinence improved with the medication Vesicare, the record did not support ALJ Volz's apparent determination that Plaintiff would not require ready access to a restroom at work. Id. Second, while evidence in the record suggested that Plaintiff “can function well with her right upper extremity, ” ALJ Volz did not provide specific, clear, and convincing reasons for his conclusion that Plaintiff can perform a full range of medium work, in light of her demonstrated impairments in her right hand and arm. Id. Finally, the Ninth Circuit took issue with ALJ Volz's conclusion that Plaintiff does not have significant walking or standing limitations, which is in seeming contradiction with his finding that she “can walk and/or stand for 1 hour before needing to sit.” Id. ALJ Volz failed to explain why that finding, in and of itself, is not a significant non-exertional limitation. Id.

         The Ninth Circuit provided the following instructions on remand:

At the administrative hearing, McGee's counsel posed a hypothetical question to the vocational expert that incorporated some of McGee's non-exertional limitations. Unfortunately, the transcript of the expert's answer is inaudible and not subject to judicial review. Therefore, we reverse the district court's order granting summary judgment and remand to the district court with instructions to remand to the Social Security Administration to make additional step-five findings, incorporating McGee's non-exertional limitations. Substantial evidence supports the finding that McGee is capable of a medium range of exertion, subject to non-exertional limitations, and substantial evidence supports the finding that McGee does not have other significant non-exertional limitations besides those reflected in the limitations described above (length of time standing/walking, modest limitations with the right upper extremity, and urinary issues).

Id. at 618-619.

         Administrative Law Judge Michael A. Kilroy (the “ALJ”) held a second hearing on remand on August 10, 2015. (A.R. 506-565.) On October 8, 2015, the ALJ issued a written decision again finding Plaintiff not disabled. (A.R. 476-505.) Following Plaintiff's timely request for review (A.R. 458-475), the ALJ's decision became final on February 12, 2016, when the Appeals Council denied Plaintiff's request for review. (A.R. 453-457.) 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)).

         In addition, “[d]eviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 886 (1989). Given the nature of the current review, it is also important to note that “[c]ourts reviewing Social Security cases after a limited remand have refused to re-examine issues settled by a district court's prior order.” Nolte v. Astrue, 2012 WL 4466558, *2 (D. Ariz. Sept. 27, 2012) (citing Hulsey v. Astrue, 622 F.3d 917, 925 (8th Cir. 2010) (law of the case doctrine applies to administrative agencies on remand, including Social Security proceedings)); Ischay v. Barnhart, 383 F.Supp.2d 1199. 1216 (C.D. Cal. 2005) (“the doctrine of the law of the case and the rule of mandate apply to matters remanded to the Agency for further proceedings”)).

         B. Determination of Disability

         1. Childhood Disability

         An individual under the age of eighteen (18) is disabled if she has a medically determinable physical or mental impairment resulting in marked and severe functional limitations. 42 U.S.C. § 1382c(a)(3)(C)(i). The following evaluation determines if a child's impairments cause marked and severe limitations:

(1) If the child is doing substantial gainful activity, the child is not disabled;
(2) If the child's physical or mental impairment is not severe, the child is not disabled;
(3) If the child's physical or mental impairment is severe, it is reviewed to see if it meets or medically equals the listings and the duration requirements. If the impairment meets both the listing and duration requirements, the child is disabled.

20 C.F.R. § 416.924(a).

         A limitation is “marked” if it interferes seriously with the child's ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2). A limitation is “extreme” if it very seriously interferes with the child's ability to independently initiate, sustain, or complete activities, although it does not require a total lack of ability to function. 20 C.F.R. § 416.926a(e)(3). A child's impairment functionally equals a listing if she has marked limitations in two domains or an extreme limitation in one domain. 20 C.F.R. § 416.926a(d).

         The Commissioner considers the following areas in determining whether a child's impairments functionally equal the listings: acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, self-care, and health and physical wellbeing. 20 C.F.R. § 416.926a(b)(1).

         2. Adult Disability

         To qualify for disability benefits under the Social Security Act, an adult 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 adult 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 childhood impairment of cerebral palsy, and the severe adult impairments of cerebral palsy and depression. She asserts that these impairments render her incapable of performing substantial gainful employment.

         A. The Hearing

         A hearing was held before the ALJ on August 10, 2015, in Billings, Montana, and the following testimony was provided.

         1. Plaintiff's Testimony

         Plaintiff testified that she lives in a multiple-level house in Billings with her husband and three dogs. (A.R. 513-514.) She spends most of her time on the lower level of her house, and estimates that she goes upstairs three or four times per week. (A.R. 514.)

         She graduated high school, and has completed one semester of college. (A.R. 514.) She knows how to use a computer and has used computers in a work setting, but she has no formal job training. (A.R. 515.)

         Plaintiff has worked in the time since the 2009 Hearing. (A.R. 516.) She worked part-time as a preschool assistant teacher from March 2010 to September 2010. She was a “fill-in assistant, ” and her hours ranged from four or five per week up to fifteen. (A.R. 517.) Her duties included printing papers, monitoring the students, assisting with drop-off and pick-up, and assisting the teachers with the classroom. (A.R. 517.) She and the other teachers were jointly responsible for the children. (A.R. 517.)

         Plaintiff also worked for four months as a receptionist at an optometric clinic. (A.R. 517-518.) That position originally was full-time, but Plaintiff's health issues forced her to cut back on hours toward the end of her tenure. (A.R. 518.) She estimates that three-fourths of her time there was spent sitting, with the other time spent standing. (A.R. 518.) Her duties included scheduling appointments and checking in patients. (A.R. 518.)

         As of the time of the hearing, Plaintiff was working “as a very part-time nanny, ” supervising two children, ages three and four, on a ranch. (A.R. 519-520.) She was working one day per week, four to five hours per day. (A.R. 519.) She described the position as a mix of sitting and walking, but indicated that there is a room where she can lay down and stretch if needed. (A.R. 519.) Her duties included supervising and entertaining the children. (A.R. 519-520.) The children's mother was present at all times, but she employed Plaintiff so she could direct her attention to the ranch financial books. (A.R. 520.) When asked by the ALJ if she could perform this job more ...

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