United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
8, 2017, plaintiff Eilene Walter
(“Plaintiff”) 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.)
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.)
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 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.)
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.)
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
Scope of Review
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 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 220,
Appendix 1? If so, then the claimant is disabled. If not,
proceed to step four. See 20 C.F.R. §§
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),
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 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.
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.)
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.)
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.)
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.)
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.
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.
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.)
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, ...