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Colegrove v. Berryhill

United States District Court, D. Montana, Billings Division

September 12, 2018

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



         On July 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).

         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. 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.)

         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.


         Plaintiff 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.)

         On 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. 15-34.)

         Plaintiff 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 action.


         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 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), 416.920(g).

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 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. § 404.1560(b)(3)).


         A. The Hearing

         A hearing was held before the ALJ on September 24, 2015, in Billings, Montana, and the following testimony was provided.

         1. Plaintiff's Testimony

         Plaintiff 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. 56, 96.)

         Plaintiff 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.)

         As for 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.)

         Most 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.)

         Plaintiff 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. 66.)

         She 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.)

         Plaintiff 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.

         Plaintiff underwent a total knee replacement in July of 2015. (A.R. 73.) Plaintiff was not given specific limitations following the surgery, but she ...

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