United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN, United States Magistrate Judge.
Kimberly Ann Stewart (“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
her 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. 2.) The Commissioner has filed an
Answer (Doc. 10) and the Administrative Record
(“A.R.”). (Doc. 11).
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, or
alternatively for further administrative proceedings. (Doc.
13.) The motion is fully briefed and ripe for the Court's
review. (Docs. 17, 18.)
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
25, 2013, Plaintiff filed an application for DIB and SSI
benefits. (A.R. 202-218.) Plaintiff alleged she has been
unable to work since June 1, 2010. (A.R. 202; 209.) The
Social Security Administration denied Plaintiff's
application initially on November 12, 2013, and upon
reconsideration on May 9, 2014. (A.R. 98-119; 120-147.) On
June 2, 2014, Plaintiff filed a written request for a
hearing. (A.R. 162-63.) Administrative Law Judge Michele M.
Kelley (the “ALJ”) held a hearing on April 14,
2015. (A.R. 41-97.) On May 18, 2015, the ALJ issued a written
decision finding Plaintiff not disabled. (A.R. 11-29.)
Plaintiff requested review of the decision on June 11, 2015.
(A.R. 7.) The ALJ's decision became final on September
21, 2016, when the Appeals Council denied Plaintiff's
request for review. (A.R. 1-6.) Thereafter, Plaintiff filed
the instant action.
argues the ALJ committed reversible error by (1) improperly
discrediting her testimony; (2) failing to properly evaluate
the medical opinion evidence; (3) failing to include
depression as a severe impairment; and (4) failing to
incorporate all of Plaintiff's impairments into the
vocational expert's hypothetical questioning.
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. §
alleged disability due to right knee replacement, migraines,
depression, back pain, melanoma skin cancer, fibromyalgia,
hip pain, neck pain, and insomnia. (A.R. 230.) She asserts
that these impairments render her incapable of performing the
work she previously performed, or any other substantial
hearing was held before the ALJ in Billings, Montana on April
14, 2015, and the following testimony was provided.
testified that she lives in Molt, Montana on 163 acres of
land with her husband. (A.R. 52.) She said the property is
not a working ranch, and they do not even grow hay. (A.R.
53.) Plaintiff does have two horses, but she stated she has
not been able to ride them since 2012. (Id.)
Sometimes she will walk out in the field to see her horses,
but she does not do anything else with them. (Id.)
Her husband feeds them. (Id.)
testified that she previously cared for her elderly in-laws,
which included physically lifting them. (A.R. 54.) Plaintiff
stated that in 2011, she injured her back while she was
trying to help lift her father-in-law after he had fallen.
(A.R. 55.) She stated he was a big man, and she felt
something in her back snap, and she had immediate pain down
her right leg. (Id.) After her back injury, she
reported gradually losing her mobility and strength. (A.R.
55-56.) Eventually she stopped physically assisting her
in-laws. (A.R. 56.) Plaintiff stated that over time, she also
stopped cooking and cleaning. (A.R. 57.)
regard to her physical limitations, Plaintiff stated she has
difficulties cooking because it requires walking, twisting
and bending. (A.R. 58-59.) Plaintiff also stated she cannot
stand for any length of time. (A.R. 59.) Plaintiff indicated
she has to change positions between standing and sitting
every 20 minutes, she cannot walk very far, and she needs to
lay down two to three times a day for 20 to 30 minutes. (A.R.
59-60.) Plaintiff testified that she sleeps in a recliner
chair because it is too painful to sleep flat, and she does
not sleep well because of her pain. (A.R. 60-61, 69.) She
stated she is unable to lift a gallon of milk due to pain.
(A.R. 61-62.) She cannot bend, and her husband has to pick
things up off the ground for her. (A.R. 64.) Plaintiff
reported she cannot vacuum, and that it had been
approximately one year since she did dishes. (A.R. 64-65.)
testified that she has had over 30 knee surgeries due to a
birth defect, with the most recent surgery being a total
right knee replacement. (A.R. 63.) She indicated she also
needed the left knee to be replaced, but was putting it off.
(Id.) She also stated that she fractured her neck 30
years ago, and has neuropathy in her right arm as a result.
(A.R. 64.) She said she experiences difficulties with fine
motor skills and writing because she has no feeling in her
middle finger. (A.R. 65-66.) She indicated she's had the
problem with her finger “forever.” (A.R. 66.)
Plaintiff stated she could type for 30-40 minutes, but then
would have to stop for the day. (Id.) She also said
she gets tremors from her medications two to three times per
week. (A.R. 67.)
described herself as formerly being an extremely active
person. (A.R. 68.) She loved sports, cut wood, and helped her
kids on the ranch. (Id.) She stated her days
currently consist of waking and getting up (which takes about
a half an hour and requires her husband's help), getting
a cup of coffee and sitting in her recliner. (A.R. 68-69.) On
bad days, Plaintiff cannot get out of her chair, but on good
days she can walk around her front porch and get fresh air.
(A.R. 77.) She estimates she has five or six bad days a week.
(A.R. 78.) Plaintiff said she no longer drives because of her
sciatica and numbness in her right leg. (A.R. 69.)
regard to mental limitations, Plaintiff testified that she
has difficulty being around other people due to anger issues.
(A.R. 70-71.) She explained that when her husband became
addicted to drugs, she developed homicidal and suicidal
ideations, which resulted in being hospitalized. (A.R.
70-71.) She also described experiencing road rage while
driving, which requires her to pull over because she wants to
hit and kill people. (A.R. 71.) She stated she does not visit
with friends because she is not a very pleasant person to be
around when she is in pain, and she gets very mean. (A.R.
72.) Plaintiff stated she cannot concentrate, but is able to
focus to read and watch television. (A.R. 72-73.) She tried
to go back to college to finish a nursing degree, but
eventually dropped out. (A.R. 74.) She said she had a hard
time concentrating in class and could not get comfortable.
(Id.) She stated she also had difficulty
concentrating enough to complete on-line coursework.
admitted she smokes medical marijuana in the evenings to help
her sleep. (A.R. 75.) She feels marijuana works better than
narcotics, and she does not like the side effects of
narcotics. (Id.) Plaintiff stated her orthopedic
surgeon, Dr. McDowell previously told her she needed back
surgery, but he would not perform the surgery because she was
uninsured. (A.R. 76.) Plaintiff explained she recently
obtained health insurance with the help of her parents.
(Id.) Therefore, Dr. McDowell had scheduled her for
surgery later in the week. (Id.) He was reportedly
going to perform two laminectomies and two discectomies.
testified that she felt the biggest issue keeping her from
working or being functional was her back. (A.R. 77.)
Vocational Expert's Testimony
Hall, a Vocational Expert, also testified before the ALJ.
(A.R. 87-96.) The ALJ asked Mr. Hall three hypothetical
questions. First, the ALJ asked Mr. Hall 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 sit 6 hours in and
8-hour workday, sit 6 hours in an 8-hour workday, frequently
climb ramps, stairs and balance, occasionally climb
ladders/ropes/scaffolds, occasionally stoop, kneel, crouch,
and crawl, and avoid concentrated exposure to extreme cold,
noise vibration and work hazards. (A.R. 87-88.) Mr. Hall
testified such a person could perform Plaintiff's past
work as an office manager, real estate agent, reservation
agent, and transcription supervisor. (A.R. 88.) Mr. Hall
stated Plaintiff could also perform unskilled jobs, such as
office helper, blood donor assistant, and survey working
interviewer. (A.R. 89.)
the ALJ asked Mr. Hall to assume the same person, but with
the limitation that the person can understand, remember and
carry out only unskilled tasks up to a vocational preparation
of 2, can make only simple work decisions, tolerate only
occasional changes in a routine work setting, and can have
only occasional interaction with supervisors, coworkers, and
the public, and should not work directly with the public.
(A.R. 90.) Mr. Hall stated that the individual would be able
to perform the jobs of office helper, mail clerk, and parking
lot attendant. (A.R. 91.) Third, the ALJ asked Mr. Hall to
assume the same person, but with the limitation the person
would be off task 20% of an 8-hour workday. (A.R. 91.) Mr.
Hall stated no jobs would be available. (A.R. 90-91.)
counsel asked Mr. Hall if there would be any jobs if the
person was unable to be on their feet for more than 2 hours
and could not lift more than 10 pounds. (A.R. 92.) Mr. Hall
stated the person could still perform the job of office
helper. (A.R. 93.) Next, Plaintiff's counsel asked if it
would be an issue for a person to miss work twice a month.
(A.R. 94.) Mr. Hall indicated it would. (Id.)
Finally, counsel asked Mr. Hall about the effect if the
person had limitations on handling/fingering or needed to
change positions. (A.R. 94-95.) Mr. Hall testified those
limitations would eliminate all but the parking lot attendant
administrative record includes Plaintiff's medical
records from several health care providers. The Court has
summarized only those records that are relevant to the
specific issues presented for review.
Treating Physician Evidence
Andrew M. Schmidt, M.D.
saw Dr. Andrew Schmidt at Billings Clinic in June 2009 for
pain in her right knee. (A.R. 373-74.) After trying cortisone
injections without relief, Dr. Schmidt performed a total knee
replacement surgery in July 2009. (A.R. 362-72.)
Approximately one year later, Plaintiff reported still
experiencing mild knee pain, but x-rays showed the knee
components were in the appropriate placement, and Dr. Schmidt
determined Plaintiff's condition was best managed with
observation. (A.R. 342-46.)
February 2011, Plaintiff returned to see Dr. Schmidt. (A.R.
326-27.) She indicated she was having some pain in her right
knee, and pain in her right buttock and down her right leg.
(A.R. 326.) Dr. Schmidt noted Plaintiff had a mildly positive
straight leg test. (Id.) X-rays of her knee showed
no significant change from May of 2010, and x-rays of her
pelvis were normal. (Id.) X-rays of her L- spine
showed degenerative disk narrowing at ¶ 2-3 and L5-S1,
with mild osteoarthritis at the L5-S1 facet joints.
was conducted on March 4, 2011, which showed marked narrowing
at ¶ 2-3, greater on the right, and degenerative
narrowing of the interspine at ¶ 5-S1. (A.R. 321-22.)