United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN United States Magistrate Judge.
April 8, 2017, plaintiff Kathleen Emma Camarena
(“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, 1381-1383f. (Doc. 2.) On June 12, 2017,
the Commissioner filed the Administrative Record
(“A.R.”). (Doc. 6).
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. 13.)
The Commissioner submitted a response brief on October 11,
2017 (Doc. 14.); Plaintiff filed a reply on February 7, 2018.
The motion is fully briefed and ready for decision. (Doc.
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 and an
application for supplemental security income benefits in
October 2013. (A.R. 279-290.) Plaintiff alleges she has been
unable to work since August 8, 2013. (A.R. 281.) The Social
Security Administration denied Plaintiff's application
initially on March 6, 2014, and upon reconsideration on July
24, 2014. (A.R. 218-220; 224-228.)
August 5, 2014, Plaintiff filed a written request for a
hearing. (A.R. 229-230.) Administrative Law Judge Michael
Kilroy (the “ALJ”) held a hearing on June 10,
2015. (A.R. 32-85.) On July 29, 2015, the ALJ
issued a written decision finding Plaintiff not disabled.
requested review of the decision on September 10, 2015. (A.R.
7.) The ALJ's decision became final on February 15, 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 June 10, 2015, in
Billings, Montana, and the following testimony was provided.
was 47 years old at the time of her hearing, and described
herself as 5'4” tall and weighing 214 pounds. She
is right-handed. (A.R. 41.) Plaintiff lives in a basement
apartment in Forsyth, Montana with her boyfriend. (A.R.
41-42.) Plaintiff has an associate's degree in medical
assisting, but has never worked in that field. (A.R. 42.)
Plaintiff knows how to use a computer, and has used one in a
work setting. (A.R. 43.)
has not worked full-time since the 2013 hearing. (A.R. 43.)
She has done some part-time work, however, and was working as
a short-order cook and bartender at the time of the hearing.
(A.R. 43.) She testified that she works 3 days per week for
durations of 7 hours (1 day) and 5 to 5.5 hours (2 days). The
5hour shifts are bartending shifts, and the 7-hour shift is
cooking. (A.R. 44.)
cooking, Plaintiff testified she is on her feet approximately
three-quarters of the time. (A.R. 44.) Plaintiff's
boyfriend is her prep cook, and he will take over cooking
duties when she gets too tired or hurts too much to continue
standing. (A.R. 46.) She lifts plates and dishes of food
while cooking, which she estimates to be only “a couple
pounds.” (A.R. 44, 57-58.) Nevertheless, Plaintiff
testified she has difficulty cooking “because of
dropping things and holding things, ” and said she has
dropped platefuls of food, cups, spatulas, and cooking
utensils. (A.R. 52.)
her bartending shifts, Plaintiff spends approximately
one-half of her time on her feet. (A.R. 44.) There is a stool
behind the bar where Plaintiff can sit when she is not
serving drinks. (A.R. 47.) Plaintiff's coworkers stock
coolers for her because the coolers are “down low,
” and she is physically unable to stock them. (A.R.
45-46.) She testified “[a] can of beer” is the
heaviest thing she lifts while bartending. (A.R. 44-45.)
gives 1 or 2 shifts per week to a coworker because she
“can't work there, ” is “too tired,
” and “hurt[s].” (A.R. 46.) She also has to
leave work early on occasion due to pain and fatigue, but
could not recall how many times she has done so. (A.R.
51-52.) She testified that she would not be able to work as a
cook 4 or 5 days per week. She has tried to work more cooking
shifts in the past, and that resulted in increased hand pain
and swelling. (A.R. 62.)
attempted to drive a beet truck, but only lasted 1 day. (A.R.
47.) She was unable to perform the job due to the required
frequency of getting in and out of the truck. (A.R. 47.) She
also reported feeling anxious while driving. (A.R. 48.)
also attempted work as a housekeeper. (A.R. 48.) She could
not recall how long she attempted that job, but she reported
that “it got to the point I hurt so bad, one day I just
couldn't get up off the floor, after cleaning out a
bathtub.” (A.R. 48.)
stated that her pain is “worse in the morning, and at
night after working, after doing anything.” (A.R. 48.)
Plaintiff testified her feet felt “like
bone-on-bone” at the hearing. (A.R. 60.) She attributes
the pain in her feet to rheumatoid arthritis. (A.R. 60.) She
also has pain in her hands, such that she cannot wash her
hand 4 or 5 days per week. (A.R. 61.) When asked how she is
able to perform her job as a cook given the pain in her
hands, Plaintiff responded, “[t]rying to figure out how
to say this; it's just I have to. I make myself - I
don't know how to explain it.” (A.R. 61-62.)
reports rising from sleep at different times on an average
workday, and says she usually wakes up two or three times per
night. (A.R. 52-53.) She may get out of bed and then take
another nap, but she finally leaves bed for work around 2:00
or 2:30 p.m. (A.R. 53.) If she gets out of bed in the
morning, she will communicate with her children or go outside
and smoke. (A.R. 53.)
works five or six blocks from her home. She drives to work
because she is physically unable to walk that far. (A.R.
53-54.) She typically is home by 9:30 or 10:00 p.m., and goes
straight to bed. (A.R. 54.) Plaintiff testified that she does
not eat very much because she does not “have an
appetite.” (A.R. 54.)
shifts at work typically are staggered, such that she does
not work multiple days in a row. (A.R. 55.) The day after she
works is spent mostly in bed, with breaks to use the
restroom, get coffee, and use the computer. (A.R. 55.) She
spends “[n]o more than 20, 30 minutes” on the
computer due to “[t]he sitting, the typing.”
does not perform many household chores, even on non-workdays.
(A.R. 55-56.) She does the dishes “every once in a
while, ” and cooks meals that she can make in a
microwave. (A.R. 56.) Her boyfriend performs other household
chores. (A.R. 56.) Plaintiff lived with her sister at times
pertinent to this appeal, but she did not perform any
additional chores in that living arrangement. (A.R. 56.)
Plaintiff also lived alone at times, but instead of doing
chores she testified she “let everything go for a very
long time.” (A.R. 56.) She does not perform chores on
non-workdays because she is sore and tired from working the
day before, citing specifically pain in her hands, neck,
shoulders, knees, hips, and “[j]oints, all of
them.” (A.R. 56-57.)
is also being treated for depression. (A.R. 62.) Plaintiff
said that she goes to treatment because she “don't
want to do this no more, ” clarifying upon questioning
from her attorney that she means she does not want to live
with pain anymore. (A.R. 63.) She has missed work in the past
because she did not want to get out of bed, although her
present medications are helping with her depression symptoms.
(A.R. 63-64.) Despite the improvement, Plaintiff reports
still having “crying spells, ” which she
attributes to “just the frustration of not knowing, you
know. What can I do, you know? Can I make it better?”
(A.R. 64.) Plaintiff also reports anxiety while driving,
although she generally can drive around Forsyth. (A.R. 64.)
attends mental health treatment in Forsyth, Montana. (A.R.
50.) Her attorney questioned her about some missed
appointments with counselor Timothy Dove. Plaintiff explained
that her missed appointments are “usually a bad pain
day where I can't get there.” (A.R. 50.)
uses marijuana “once or twice a week.” (A.R. 49.)
She explained that she uses it with that frequency because
she cannot afford to use it more often and does not have a
medical marijuana card. (A.R. 49.) She reports that marijuana
helps her relax so she can sleep at night, and that she uses
it before she goes to bed. (A.R. 49.) There was a point
during which Plaintiff was using marijuana daily; she could
not recall when that was, but testified it “was a while
ago, I think.” (A.R. 49-50.) She estimates that she
spends $20.00 per month on marijuana. (A.R. 50.)
was asked about records indicating that “either you or
your daughter, or somebody” was gambling excessively.
Plaintiff denied having any such issues, and said that a
“big month” of gambling spending would be around
$10. (A.R. 50-51.)
testified she cannot sit for prolonged periods due to pain in
her hips. (A.R. 59.) She stated that she can only sit
“maybe 5 minutes” before needing to stand up.
(A.R. 59.) On non-workdays, Plaintiff lays and stands, as
opposed to sitting and standing, because laying down does not
hurt her hips as much as sitting. (A.R. 59-60.)
does go to the movies with her boyfriend once a month. (A.R.
68.) Plaintiff's boyfriend has attempted to get her out
of the house more often, including purchasing a fishing
license for her. (A.R. 68.) But she does not like riding in a
car because of her anxiety. The ALJ asked Plaintiff the
difference between sitting in a car and going for a drive
versus sitting at home. Plaintiff responded, “I
don't know. In a car, I feel like I want ...