United States District Court, D. Montana, Billings Division
SHELA K. KESSLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
TIMOTHY J. CAVAN United States Magistrate Judge
Sheila K. Kessler (“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”) under Title XVI of the Social Security
Act (“the Act”), 42 U.S.C. §§ 401-433.
(Doc. 2.) The Commissioner has filed an Answer (Doc. 15) and
the Administrative Record (“A.R.”). (Doc. 16).
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. (Doc. 24.)
The motion is fully briefed and ripe for the Court's
review. (Docs. 29, 32.)
reasons set forth herein, and after careful consideration of
the record and the applicable law, the Court finds
Plaintiff's motion should be DENIED, and
the Commissioner's decision denying DIB should be
April 16, 2013, Plaintiff filed an application for disability
insurance benefits, which is the subject of this action.
(A.R. 185-188.) Plaintiff alleged she has been unable to work
since August 30, 2012. (A.R. 185.) The Social Security
Administration denied Plaintiff's application initially
on July 19, 2013, and upon reconsideration on November 29,
2013. (A.R. 89-99; 100-111.) On April 16, 2014, Plaintiff
filed a written request for a hearing. (A.R. 121-22.)
Administrative Law Judge Michele M. Kelley (the
“ALJ”) held a hearing on December 11, 2014. (A.R.
40-88.) On January 30, 2015, the ALJ issued a written
decision finding Plaintiff not disabled. (A.R. 20-35.)
Plaintiff requested review of the decision on March 11, 2015.
(A.R. 9.) The ALJ's decision became final on June 21,
2016, when the Appeals Council denied Plaintiff's request
for review. (A.R. 1-5.) Thereafter, Plaintiff filed the
argues the ALJ committed reversible error by (1) failing to
give proper weight to her treating psychiatrist's
opinion; (2) erroneously finding she did not meet Listings
12.04 (depressive disorders) and 12.06 (anxiety disorders);
(3) improperly discrediting her testimony; and (4) failing to
properly weigh lay witness testimony.
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); 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, depression, anxiety disorder, and
posttraumatic stress disorder (“PTSD”). She
asserts that these impairments render her incapable of
performing work she previously performed, or any other
substantial gainful employment.
hearing was held before the ALJ in Billings, Montana on
December 11, 2014, and the following testimony was provided.
testified she had been living in California since the age of
18, and was able to maintain a consistent work history. (A.R.
53-54.) She moved back to Montana in 2006 to take over her
family's direct sales “Shaklee” business.
(A.R. 52, 54.) Plaintiff stated things changed for her when
she moved to Montana because she had to live near her family
again, and that caused her emotional difficulties. (A.R. 54.)
She indicated her self-esteem and thought process
respect to her work history since returning to Montana,
Plaintiff testified that the family business has been in a
steady decline. (A.R. 56.) She estimated that she made
approximately $500 per month in 2011-2012 from the business.
(Id.) She said that in a typical week, she only
spends 1-2 hours with the business. (A.R. 55.) Plaintiff
retrieves voicemail messages, coordinates with customers to
deliver orders, and drop ships products. (A.R. 56.) Most of
her customers order online or over the phone, but
approximately twenty percent come to her house to pick up
products. (A.R. 55.) Plaintiff does not host parties
to promote her Shaklee products, but she did host a party for
her sister-in-law's similar business. (A.R. 70.)
testified she has also done temporary clerical jobs. (A.R.
52.) She testified she is generally able to complete those
jobs because they are short term. (Id.) Plaintiff
had one position with the Girl Scouts that had the potential
to be permanent, but she was let go after the three month
probationary period. (Id.) Plaintiff had another job
she liked at Advance Employment, but she could not keep up
with the pace, and had to quit. (A.R. 87.)
time of the hearing, Plaintiff testified she had been working
a temporary job as a receptionist for seven weeks. (A.R.
49-50.) Plaintiff reported she had been absent four times
during those seven weeks. (A.R. 50.) She said she missed work
the day before the hearing and the day of the hearing. (A.R.
50-51.) She also missed a portion of another day when she
left early because of illness. (A.R. 50.) Plaintiff could not
remember the reason she missed the fourth day, other than
“lack of wanting to go in.” (Id.)
testified she lives in a multi-level house with a roommate.
(A.R. 48-49; 58.) She described her typical non-workday as
waking up between 10:00 and 11:00 a.m., getting something to
eat and taking it back to her bedroom and watching
television. (A.R. 58.) Plaintiff described herself as a
“very depressed person, ” and said sleep
“is my best friend.” (Id.) She indicated
she isolates herself in her bedroom and does not use the
middle level of her house because it is easier than talking
to her roommate. (Id.) Plaintiff goes to bed around
6:00 p.m., watches television, and then takes her medications
at 9:00 p.m. (A.R. 61.)
stated she goes grocery shopping approximately once every two
weeks. (A.R. 58.) She often misses meals because she does not
have the energy to go shopping. (Id.) Plaintiff said
she used to cook, but does not do so any longer. (A.R. 59.)
She usually eats frozen meals, and often goes to
drive-through restaurants. (A.R. 59-60.)
testified that she used to read, but her attention span has
decreased, and now she can only look at magazines. (A.R. 59.)
She also reported having difficulties maintaining personal
hygiene. (A.R. 61.) She said at times she would go three or
four days without showering, and only brush her teeth every
other day. (Id.) Nevertheless, Plaintiff also
indicated she was able to take the necessary steps to obtain
a loan modification on her home. (A.R. 60.) She also stated
she had fallen behind on her taxes, but was able to do two
years at once because she needed to get them done.
said some days she is less functional than other days. (A.R.
62.) At times this is due to neglecting to take her
medication for two or three days. (Id.) Plaintiff
stated that there are also periods of time where she will
miss a lot of appointments because she cannot get out of bed,
and cannot leave her house. (A.R. 69.) Plaintiff testified
she gets panic attacks and anxiety when she is closely
involved with someone, such as a boyfriend. (A.R. 63.) She
also gets “very panicky” around her parents.
regard to her physical limitations, Plaintiff testified that
she takes OxyContin for pain. (A.R. 65.) She previously went
to chemical dependency treatment due to her overuse of
Hydrocodone. (Id.) Plaintiff stated she currently
has a pain contract for her medication, and does not have any
issues of overuse. (Id.) Plaintiff testified she
cannot lift more than 35 to 40 pounds. (A.R. 66-67.)
Plaintiff also stated she didn't think she could do a job
where she would have to stand for long period of time. (A.R.
67.) She also has a difficult time sitting at a desk all day
long. (A.R. 68.)
Vocational Expert's Testimony
Fortune, a vocational expert, also testified before the ALJ.
(A.R. 76-85.) 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 and carry
25 pounds frequently and 50 pounds occasionally, stand and
walk 6 hours in an 8-hour work day, sit 6 hours in an 8-hour
workday, frequently climb ramps and stairs, balance, kneel,
crouch, and crawl, and occasionally climb ladders, ropes, and
scaffolds, and stoop. (A.R. 79.) Mr. Fortune testified the
hypothetical individual would be able to perform all of
Plaintiff's past work. (Id.)
the ALJ asked Mr. Fortune to assume the same person but with
the limitation that the person could only make simple work
decisions and judgments, tolerate only occasional changes in
a work setting, and cannot work at a fixed production rate
pace, but can do goal oriented work. (A.R. 79-80.) Mr.
Fortune stated the person could perform Plaintiff's
current job as a receptionist. (Id.) The ALJ asked
if there were any other jobs in the national economy the
person could do. (A.R. 80.) Mr. Fortune stated the individual
could work as a telephone survey worker, new account clerk,
parking attendant, mail clerk, laundry dry cleaning worker,
and kitchen helper. (A.R. 80-82.)
the ALJ asked Mr. Fortune to assume the same person, but with
the requirement the person would be off task 20 percent of an
8-hour workday. (A.R. 82.) Mr. Fortune stated the individual
could not perform Plaintiff's past jobs, or any other
jobs in the national economy. (Id.)
counsel asked Mr. Fortune how many absences would generally
be tolerated. (A.R. 83.) He stated two or more per month on a
consistent basis would put the person's job in jeopardy.
(Id.) Plaintiff's counsel then asked Mr. Fortune
to assume the same person from hypothetical number one, but
who was unable to maintain attention for 2 hour segments,
sustain an ordinary routine without special supervision, or
complete a normal work day without being interrupted by
psychologically based symptoms. (Id.) Mr. Fortune
stated there would be no jobs available. (A.R. 83.) He also
testified that an ...