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Walter v. Berryhill

United States District Court, D. Montana, Billings Division

September 24, 2018

EILEEN WALTER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE

         On May 8, 2017, plaintiff Eilene Walter (“Plaintiff”)[1] filed a complaint pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the 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 Act, 42 U.S.C. §§ 401-433, 1381-1383f. (Doc. 1.) On July 10, 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. 17.) The Commissioner submitted a response brief on December 18, 2017 (Doc. 18); Plaintiff filed a reply on January 2, 2018. The motion is fully briefed and ripe 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

         I. PROCEDURAL BACKGROUND

         Plaintiff filed applications for disability insurance benefits and supplemental security income benefits in June 2013. (A.R. 13.) Plaintiff initially alleged that she has been unable to work since August 30, 2012, but later amended that date to June 1, 2014. (A.R. 13, 40.) The Social Security Administration denied Plaintiff's application initially on December 4, 2013, and upon reconsideration on April 25, 2014. (A.R. 130-132, 106-127.)

         On June 27, 2014, Plaintiff filed a written request for a hearing. (A.R. 141-142.) Administrative Law Judge Michele M. Kelley (the “ALJ”) held a hearing on July 28, 2015. (A.R. 32-83.) On August 27, 2015, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 10-30.)

         Plaintiff requested review of the decision on October 22, 2015. (A.R. 9.) The ALJ's decision became final on March 9, 2017, when the Appeals Council denied Plaintiff's request for review. (A.R. 1-7.) Thereafter, Plaintiff filed the instant action.

         II. LEGAL STANDARDS

         A. Scope of Review

         The 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 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(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)).

         III. FACTUAL BACKGROUND

         A. Hearing

         A hearing was held before the ALJ on July 28, 2015, in Billings, Montana. Plaintiff appeared with counsel, Molly C. Ward. Ms. Ward explained that Plaintiff suffers from anti-phospholipid antibody syndrome, which was diagnosed in 2004. (A.R. 39.) The disease causes blood clotting and risk of stroke, which must be controlled by Coumadin therapy. (A.R. 39-40.) The goal of the therapy is to keep Plaintiff's International Normalized Ratio (INR) between 3.5 and 4.0. Id. But when her INR is reduced, Plaintiff claims to suffer from symptoms of tingling, numbness and pain in her fingers, as well as headaches. Id.

         1. Plaintiff's Testimony

         Plaintiff testified she gets her INR checked monthly or biweekly, and claims “it's always out of range.” (A.R. 47.) Although, records indicate some periods where Plaintiff has gone “at least a couple months” without seeing a doctor. Plaintiff explained that she does not always have access to a vehicle that would allow her to see a doctor. Also, she said “it gets tiring” having to explain her medical history to new providers. (A.R. 47-48.) She states that she regularly takes her Coumadin and adheres to her prescribed diet. (A.R. 47.)

         Plaintiff was previously employed by NOVA One. (A.R. 41.) She was employed in a full-time capacity, although her testimony does not reveal the nature of her position. (A.R. 41-42.) Plaintiff states that NOVA One sent her home “almost daily” toward the end of her tenure due to migraine headaches. (A.R. 42.) The job ultimately ended in August or September of 2014. (A.R. 42.) Plaintiff subsequently attempted to work at Tender Nest as a CNA “helping elderly people with lifting.” (A.R. 43.) Plaintiff worked at that job for “a couple months, ” but was terminated after she injured her back lifting one of her patients. (A.R. 43.) Plaintiff later applied for a job at McDonald's but was not hired. (A.R. 44.)

         Plaintiff has tried numerous medications to alleviate her migraines, and nothing has worked. (A.R. 53.) She estimates that she has migraines once or twice per week; she believes they are influenced by the weather. (A.R. 53.) When she has a migraine, Plaintiff will lay down for two to three hours will all lights off and windows closed. (A.R. 53-54.)

         Plaintiff testified she also has numbness and tingling in both hands, feet and toes. (A.R. 49.) The numbness in her hands causes her to drop items, such as “a pencil, a spoon, plates, whatever I'm holding at the time.” (A.R. 49.) Plaintiff said it took her “a couple days” to type a letter to her attorney due to the pain and numbness in her hands. (A.R. 50.) Plaintiff does not “recall any time that they are not tingling or numb.” (A.R. 54.)

         Plaintiff limits her time on the telephone because holding the phone causes pain and numbness in her hands. (A.R. 50.) Plaintiff stated that over the course of a 10-15-minute phone call with her attorney, she probably switched hands 20 times, in addition to holding the phone with her shoulder. (A.R. 50-51.)

         Plaintiff also testified it takes her longer to shower because holding her hands at head-level exacerbates the problems. (A.R. 51.) Plaintiff's daughter often has to shave Plaintiff's legs for her. (A.R. 51.) Plaintiff also has difficulty clasping her bra and wearing clothes with buttons. (A.R. 51-52.)

         Plaintiff acknowledged that she was referred to a doctor by the Social Security Administration for an evaluation of her symptoms. (A.R. 48.) Despite Plaintiff's professed problems with her hands, the doctor reportedly found Plaintiff's gripping, handling, and fingering to be adequate. (A.R. 48-49.) Plaintiff claims, however, that doctor did not perform any tests on her hands, and she also explained that the problems fluctuate. (A.R. 49.)

         Plaintiff has significant experience working in an office setting, listing such jobs as receptionist and customer service. (A.R. 52.) She claims that even those jobs would be difficult for her due to the problems with her hands, ...


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