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Frank v. Berryhill

United States District Court, D. Montana, Butte Division

March 29, 2018

SUSAN FRANK, f/k/a Susan Grayson, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Jeremiah C. Lynch, United States Magistrate Judge

         Plaintiff 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).

         Frank 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.

         I. Standard of Review

         This 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).

         “The 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).

         II. Burden of Proof

         To 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)).

         In 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).

         If, 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. § 404.1520(a)(4)(v).

         III. Discussion

         The ALJ 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 142-54).

         Frank 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.

         A. Severe Impairments

         Frank argues the ALJ erred at step two by not including fibromyalgia ...


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