United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
10, 2017, plaintiff Sarah Jean Colegrove
(“Plaintiff”) 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 Plaintiff's claim for disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act, 42 U.S.C.
§§ 401-433, 1381-1383(f). (Doc. 1.) On September
12, 2017, the Commissioner filed the Administrative Record
(“A.R.”). (Doc. 4).
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. 11.)
The Commissioner submitted a response brief on December 28,
2017 (Doc. 12); Plaintiff filed a reply on January 10, 2018.
The motion is fully briefed and ripe for decision. (Doc. 13.)
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
filed an application for disability insurance benefits in
September 2013, and an application for supplemental security
income benefits in October 2013. (A.R. 210-223.) Plaintiff
alleges she has been unable to work since August 15, 2013.
(A.R. 214.) The Social Security Administration denied
Plaintiff's application initially on March 3, 2014, and
upon reconsideration on August 25, 2014. (A.R. 124-159.)
September 25, 2014, Plaintiff filed a written request for a
hearing. (A.R. 168-169.) Administrative Law Judge Lloyd E.
Hartford (the “ALJ”) held a hearing on September
24, 2015. (A.R. 35-115.) On February 22, 2016, the ALJ issued
a written decision finding Plaintiff not disabled. (A.R.
requested review of the decision on April 22, 2016. (A.R.
209.) The ALJ's decision became final on May 12, 2017,
when the Appeals Council denied Plaintiff's request for
review. (A.R. 1-6.) Thereafter, Plaintiff filed the instant
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 404,
Subpart P, 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)-(f), 416.920(e)-(f).
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(g),
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 v. Apfel, 180 F.3d 1094,
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. §
hearing was held before the ALJ on September 24, 2015, in
Billings, Montana, and the following testimony was provided.
lives with her husband in an apartment in Sidney, Montana.
(A.R. 55.) Plaintiff's husband works at Reynolds
Warehouse Grocery, where Plaintiff used to work. (A.R.
55-56.) Plaintiff and her husband had a daughter, but she has
been adopted because they could not provide for her. (A.R.
was first diagnosed with systemic lupus erythematosus in
2011. Plaintiff testified that lupus was the only impairment
she alleged at the time of her initial application for
disability benefits. (A.R. 59-60.) At the time of the
hearing, however, Plaintiff also was alleging disability
based in whole or in part on depression, left knee
replacement, and back pain. (A.R. 60-62.)
past employment, Plaintiff worked as a junior aide at Sidney
Health Center (“SHC”) from 2008 to 2009, earning
$9, 006.00 in 2009. (A.R. 66.) She also worked at SHC in 2011
as a dishwasher, and earned $7, 032.00. (A.R. 67.) In 2012,
she worked at the Sidney Hotel as a housekeeper, earning $2,
006.00, in addition to the $11, 249.00 she earned that year
from her dishwashing job. (A.R. 67-68.)
recently, Plaintiff worked at Reynolds Grocery for a few
months in 2014. Plaintiff worked five days per week from
11:00 a.m. until 5:00 p.m., earning $11.00 per hour. (A.R.
72-73.) She was initially hired as a cashier, but was moved
to the deli after making mistakes. (A.R. 77-79.) After
switching to the deli, however, she was told she was moving
too slowly, and she ultimately was fired. (A.R. 79.)
testified she could not return to her job as a junior aide.
She described the position as helping CNAs at a nursing home
or extended care facility. (A.R. 65-66). She testified,
“you feed the residents, you stock the rooms, you
basically assist the CNAs…with whatever you need -
with whatever needs done.” (A.R. 65-66.) Plaintiff said
she enjoyed the job, but it requires sitting and standing,
which she cannot “do a lot of” anymore. (A.R.
also testified she left the dishwashing job at SHC because
she “just flat-out couldn't do it anymore.”
(A.R. 80.) She said the same was true with her housekeeping
job. She testified she tried but “couldn't keep
up.” (A.R. 81.) Plaintiff elaborated that her physical
problems have prevented her from performing the jobs, even
before her knee replacement. (A.R. 81-82.) She cited pain in
her hips and back, and difficulty standing. (A.R. 82.)
also testified about her ability to perform household chores.
She said she “used to be able to vacuum on a somewhat
regular basis, ” but now is lucky to do so once per
month. (A.R. 83.) Standing to wash the dishes hurts her knees
and back. (A.R. 83.) Plaintiff also has difficulty lifting
the laundry hamper when it is full of clothes. (A.R. 88.)
Lifting causes pain in her arms and back. (A.R. 88.) She
estimates that she can perform household chores for two
minutes before needing to take a 30-minute break. (A.R. 89.)
Plaintiff also has difficulty sitting for long periods of
time, due to problems with her back and hips. (A.R. 87.) She
is forced to change positions frequently.
underwent a total knee replacement in July of 2015. (A.R.
73.) Plaintiff was not given specific limitations following
the surgery, but she ...