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Camarena v. Berryhill

United States District Court, D. Montana, Billings Division

September 17, 2018

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


          TIMOTHY J. CAVAN United States Magistrate Judge.

         On 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).

         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. 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. 19.)

         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 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.)

         On 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.[1] (A.R. 32-85.) On July 29, 2015, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 8-31.)

         Plaintiff 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 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 June 10, 2015, in Billings, Montana, and the following testimony was provided.

         1. Plaintiff's Testimony

         Plaintiff 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.)

         Plaintiff 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.)

         While 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.)

         During 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff's 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.” (A.R. 55.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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 ...

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