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Stewart v. Berryhill

United States District Court, D. Montana, Billings Division

March 30, 2018

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


          TIMOTHY J. CAVAN, United States Magistrate Judge.

         Plaintiff 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).

         Presently 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.)

         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 July 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.

         Plaintiff 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.


         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 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 gainful employment.

         A. The Hearing

         A hearing was held before the ALJ in Billings, Montana on April 14, 2015, and the following testimony was provided.

         1. Plaintiff's Testimony

         Plaintiff 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.)

         Plaintiff 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.)

         With 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         With 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. (Id.)

         Plaintiff 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. (Id.)

         Plaintiff testified that she felt the biggest issue keeping her from working or being functional was her back. (A.R. 77.)

         2. Vocational Expert's Testimony

         Delane 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.)

         Second, 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.)

         Plaintiff's 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 job. (Id.)

         B. Medical Evidence

         The 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.

         1. Treating Physician Evidence

         a. Andrew M. Schmidt, M.D.

         Plaintiff 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.)

         In 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. (Id.)

         An MRI 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.) Dr. ...

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