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Kessler v. Berryhill

United States District Court, D. Montana, Billings Division

May 16, 2018

SHELA K. KESSLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          TIMOTHY J. CAVAN United States Magistrate Judge

         Plaintiff 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).

         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. (Doc. 24.) The motion is fully briefed and ripe for the Court's review. (Docs. 29, 32.)

         For the 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 AFFIRMED.

         I. PROCEDURAL BACKGROUND

         On 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 instant action.

         Plaintiff 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.

         II. LEGAL STANDARDS

         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); 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)).

         III. FACTUAL BACKGROUND

         Plaintiff 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.

         A. The Hearing

         A hearing was held before the ALJ in Billings, Montana on December 11, 2014, and the following testimony was provided.

         1. Plaintiff's Testimony

         Plaintiff 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 deteriorated. (Id.)

         With 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.)

         Plaintiff 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.)

         At the 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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. (Id.)

         Plaintiff 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. (Id.)

         With 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.)

         2. Vocational Expert's Testimony

         James 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.)

         Second, 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.)

         Third, 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.)

         Plaintiff's 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 ...


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