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Gustafson v. Berryhill

United States District Court, D. Montana, Billings Division

March 26, 2018

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


          TIMOTHY J. CAVAN United States Magistrate Judge.

         Plaintiff Pamela Ann Gustafson (“Plaintiff”) has 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 supplemental security income (“SSI”) under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f. (Doc. 1.) The Commissioner filed an Answer (Doc. 10) and the Administrative Record (“A.R.”). (Doc. 11).

         Presently before the Court is Plaintiff's motion for summary judgment, seeking reversal of the Commissioner's denial and remand for further administrative proceedings. (Doc. 17.) The motion is fully briefed and ripe for the Court's review. (Docs. 24, 25.)

         For the reasons set forth herein, and after careful consideration of the record and the applicable law, the Court finds the case should be REMANDED for further administrative proceedings.


         On February 19, 2013, Plaintiff filed an application for SSI benefits. (A.R. 158-166.) Plaintiff alleged she became unable to work on June 1, 2005. (A.R. 117.) At the hearing, Plaintiff's counsel amended the onset date to March 31, 2013. (A.R. 48.) The Social Security Administration denied Plaintiff's application initially on August 26, 2013, and upon reconsideration on January 10, 2014. (A.R. 78-88; 92-104.) On January 22, 2014, Plaintiff filed a written request for a hearing. (A.R. 115-117.) Administrative Law Judge Michele M. Kelley (the “ALJ”) held a hearing on December 11, 2014. (A.R. 34-76.) On January 30, 2015, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 12-23.) Plaintiff requested review of the decision on April 6, 2015. (A.R. 7.) The ALJ's decision became final on July 9, 2016, when the Appeals Council denied Plaintiff's request for review. (A.R. 1-65) Thereafter, Plaintiff filed this action.

         Plaintiff argues that the ALJ erred in the following ways: (1) improperly discrediting Plaintiff's testimony; (2) failing to give proper weight to the opinion of Plaintiff's medical providers; (3) failing to incorporate depression as an impairment; and (4) failing to incorporate all of Plaintiff's impairments into the vocational consultant's hypothetical questioning. (Doc. 17 at 5.) Plaintiff also complains that the ALJ adopted an RFC that exceeded Plaintiff's capacity, and that the ALJ's decision was internally inconsistent. (Id. at 8.)


         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, 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. § 404.1560(b)(3)).


         Plaintiff claims to suffer from severe impairments of degenerative disc disease of the spine and bilateral shoulder osteoarthritis with internal derangement of the right shoulder. She also asserts she suffers from depression. 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 December 11, 2014, and the following testimony was provided. (A.R. 34-76.)

         1. Plaintiff's Testimony

         Plaintiff testified she lives alone at the Prairie Tower in Billings, Montana. (A.R. 42.) Previously, she lived with her daughter and three grandchildren, ages 8, 5 and 3. (A.R. 42, 63.) Plaintiff testified that she recently tried to work at Prairie Tower in the cafeteria. (A.R. 46-50.) Plaintiff stated she worked about 20 hours per week, sometimes less. (A.R. 47.) Her job included setting tables, filling water pitchers, and delivering tea, coffee, and desserts to tables. (A.R. 47-49.) Plaintiff stated she had to use two hands for pouring, and she used a cart to move items. (A.R. 48.) Someone had to help her lift things that were too heavy for her. (A.R. 48, 50.) Plaintiff was let go from her job the day before she had neck surgery in October 2014. (A.R. 50.) Plaintiff asked her boss if she could return to work after she recovered, and she was told no. (Id.) Plaintiff's boss was supposed to write a letter explaining the reasons, but Plaintiff had not received the letter prior to the hearing. (Id.)

         As discussed below, Plaintiff had neck surgery approximately two months prior to her hearing before the ALJ. She testified that her lifting restriction was 7 pounds following her neck surgery. (A.R. 50.) Plaintiff was also restricted to not lifting anything above her shoulders. (Id.) Before surgery, she said she could lift 20 pounds. (A.R. 51.)

         Plaintiff testified that she has difficulty with her fingers on both hands. (A.R. 52.) She experiences numbness, shaking and trembling, and drops things. (Id.) Plaintiff has to have meat cut up for her, and her shaking causes food to fall off her spoon. (A.R. 53.) She also needs help opening containers, such as milk, water, and pill bottles. (A.R. 59.) Plaintiff stated that she would not be able to do her previous work of soldering because her hands shake. (A.R. 54.) Plaintiff indicated she can walk about a block and stand for about 5 minutes before needed a break. (A.R. 54-55.)

         With regard to her mental health, Plaintiff stated that her biggest issue was her memory. (A.R. 56.) Plaintiff stated she had experienced memory problems since her childhood, and had difficulties in school. (A.R. 56-57.) Plaintiff has not been able to remember how to use a computer. (A.R. 57.) Plaintiff stated her memory problems caused her difficulty with her Prairie Tower job because customers would ask for things, and she would forget what they wanted. (A.R. 57-58.) Plaintiff stated that she does better if she's shown how to do something, but she is not able to read directions and follow them. (A.R. 58.) At times during the hearing, Plaintiff responded in a way that indicated she had difficulties with her memory. (See A.R. 42-43 (Plaintiff did not remember the street number of Prairie Tower where she lives), 45 (Plaintiff could not remember how long she was married).

         As for daily activities, Plaintiff indicated she can drive, and she watches her grandchildren some evenings and weekends. (A.R. 56, 62-63.) Before Plaintiff moved into Prairie Tower, she babysat her grandchildren while her daughter worked. (A.R. 47.)

         2. Vocational Expert's Testimony

         James Fortune, a vocational expert, also testified before the ALJ. (A.R. 64-75.) The ALJ asked Mr. Fortune three hypothetical questions. First, the ALJ asked Mr. Fortune 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 and stand for 6 hours and sit for more than 6 hours in an 8-hour workday, could occasionally climb ramps, stairs, ladders, ropes, and scaffolds, balance stoop, kneel, crouch and crawl, and who could frequently handle, and could reach to the front, laterally, and overhead with both upper extremities. (A.R. 70.) Mr. Hall testified the hypothetical individual would be able to perform Plaintiff's past work as an office manager and assembler. (Id.)

         Second, the ALJ asked Mr. Fortune to assume the same person but with the limitation that the person cannot lift her arms over shoulder level, and also cannot climb ladders, ropes and scaffolds, and cannot be exposed to work hazards. (A.R. 71.) Mr. Hall stated that would not change his prior answer. (Id.)

         Third, the ALJ asked Mr. Hall to assume the same person, but with the requirement the person would be off task 20 percent of an 8-hour workday. (A.R. 72-73.) Mr. Fortune stated the individual could not perform Plaintiff's past jobs, as actually performed or as generally performed in the national economy. (Id.)

         Plaintiff's counsel asked Mr. Fortune whether the person discussed in the ALJ's first hypothetical would be capable of performing Plaintiff's prior jobs if the person were limited to only occasionally handling and fingering. (A.R. 74.) Mr. Fortune stated that would eliminate both of Plaintiff's prior jobs. (A.R. 75.) Next, Plaintiff's counsel asked if there would be jobs available if the person was limited to lifting seven pounds. (Id.) Mr. Fortune responded that would make her unable to perform light and sedentary work. (Id.)

         B. ...

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