United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN United States Magistrate Judge.
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.
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.)
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
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.
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.)
Scope of Review
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).
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)).
Determination of Disability
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.
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),
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. §§
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),
Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.
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. §
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
hearing was held before the ALJ on December 11, 2014, and the
following testimony was provided. (A.R. 34-76.)
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.)
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.)
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.)
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).
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.
Vocational Expert's Testimony
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.)
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.
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
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.