United States District Court, D. Montana, Butte Division
Jeremiah C. Lynch, United States Magistrate Judge
Susan Frank brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner
of Social Security denying her application for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-433. Frank alleges disability
since December 10, 2013, due to a back injury, arthritis,
diabetes, and depression. (Doc. 6, at 111). Frank's claim
was denied initially and on reconsideration, and by an ALJ
after an administrative hearing. The Appeals Council denied
Frank's request for review, making the ALJ's decision
the agency's final decision for purposes of judicial
review. Jurisdiction vests with this Court pursuant to 42
U.S.C. § 405(g).
was 53 years old at the time of her alleged onset date and 55
years old at the time of the ALJ's decision in June 2015.
Standard of Review
Court's review 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. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005); Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
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); Widmark v. Barnhart, 454 F.3d 1063,
1070 (9th Cir. 2006).
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold
the Commissioner's findings “if supported by
inferences reasonably drawn from the record.”
Batson v. Commissioner of Social Security
Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). “[I]f evidence exists to support more than one
rational interpretation, ” the Court “must defer
to the Commissioner's decision.” Batson,
359 F.3d at 1193 (citing Morgan v. Commissioner, 169
F.3d 595, 599 (9th Cir. 1999). This Court
“may not substitute its judgment for that of the
Commissioner.” Widmark, 454 F.3d at 1070
(quoting Edlund, 253 F.3d at 1156).
Burden of Proof
establish disability, a claimant bears “the burden of
proving an ‘inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which...has lasted or can be
expected to last for a continuous period of not less than 12
months.'” Batson, 359 F.3d at 1193-94
(quoting 42 U.S.C. § 423(d)(1)(A)).
determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. 20 C.F.R.
§ 404.1520. The claimant bears the burden of
establishing disability at steps one through four of this
process. Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005). At the first step, the ALJ will
consider whether the claimant is engaged in
“substantial gainful activity.” 20 C.F.R. §
404.1520(a)(4)(I). If not, the ALJ must determine at step two
whether the claimant has any impairments that qualify as
“severe” under the regulations. 20 C.F.R. §
404.1520(a)(4)(ii). If the ALJ finds that the claimant does
have one or more severe impairments, the ALJ will compare
those impairments to the impairments listed in the
regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the ALJ
finds at step three that the claimant has an impairment that
meets or equals a listed impairment, then the claimant is
considered disabled. 20 C.F.R. § 404.1520(a)(iii).
however, the claimant's impairments do not meet or equal
the severity of any impairment described in the Listing of
Impairments, then the ALJ must proceed to step four and
consider whether the claimant retains the residual functional
capacity (RFC) to perform his or her past relevant work. 20
C.F.R. § 404.1520(a)(4)(iv). If the claimant establishes
an inability to engage in past work, the burden shifts to the
Commissioner at step five to establish that the claimant can
perform other work in the national economy. 20 C.F.R. §
found at step one that Frank meets the insured status
requirements of the Act through December 31, 2018. The ALJ
further found that Frank had not engaged in substantial
gainful activity since her December 10, 2013, alleged onset
date. At step two, the ALJ found that Frank had the following
severe impairments: bilateral osteoarthritis in the hands,
ankles, toes, and knees; bilateral total knee arthroplasty
surgeries; trochanteric bursitis, degenerative disc disease,
obesity, depression, anxiety, and attention deficit disorder.
The ALJ concluded at step three that Frank did not have an
impairment or combination of impairments that met or
medically equaled any impairment described in the Listing of
Impairments. The ALJ further found that while Frank's
impairments could reasonably be expected to cause her alleged
symptoms, her statements regarding the severity of those
symptoms were not entirely credible. The ALJ determined that
Frank had the residual functional capacity to perform a
reduced range of light work. The ALJ concluded at step four
that Frank could perform past relevant work as a hostess and
hospital cleaner. Alternatively, the ALJ found that Frank was
not disabled at step five because there were other jobs in
the national economy that she could perform. (Doc. 6, at
argues the ALJ's determination that she has the residual
functional capacity to perform a range of light work is not
supported by substantial evidence, and raises several issues
on appeal. First, Frank maintains the ALJ erred at step two
by not including fibromyalgia as a severe impairment. Second,
Frank argues the ALJ erred at step three by finding she did
not meet or equal the criteria of any listed impairment.
Third, the Frank contends the ALJ did not provide specific,
clear and convincing reasons for discounting her subjective
symptom testimony. Fourth, Frank argues the ALJ did not
provide sufficiently specific and legitimate reasons for
rejecting the opinions of three treating physicians.
argues the ALJ erred at step two by not including