United States District Court, D. Montana, Missoula Division
R. L. R., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.
R. L. R. brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner
of Social Security denying her application for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-433. Plaintiff alleges disability
since April 30, 2009, due to degenerative disc disease,
depression, jaw pain, ulcers, and high blood pressure. (Doc.
6, at 138). Plaintiff's claim was denied initially and on
reconsideration, and she requested an administrative hearing
which took place in July 2015. Plaintiff was not represented
by an attorney or other representative at the administrative
hearing. In December 2015, the Administrative Law Judge
(“ALJ”) issued a decision finding Plaintiff not
disabled within the meaning of the Act. The Appeals Council
denied Plaintiff's request for review, making the
ALJ's decision the agency's final decision for
purposes of judicial review. Jurisdiction vests with this
Court pursuant to 42 U.S.C. § 405(g).
was 52 years old at the time of her alleged onset date and 59
years old at the time of the ALJ's decision.
Standard of Review
Court's review is limited. The Court may set aside the
Commissioner's decision only where the decision is not
supported by substantial evidence or where the decision is
based on legal error. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005); Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063,
1070 (9th Cir. 2006).
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold
the Commissioner's findings “if supported by
inferences reasonably drawn from the record.”
Batson v. Commissioner of Social Security
Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). “[I]f evidence exists to support more than one
rational interpretation, ” the Court “must defer
to the Commissioner's decision.” Batson,
359 F.3d at 1193 (citing Morgan v. Commissioner, 169
F.3d 595, 599 (9th Cir. 1999). This Court
“may not substitute its judgment for that of the
Commissioner.” Widmark, 454 F.3d at 1070
(quoting Edlund, 253 F.3d at 1156).
Burden of Proof
establish disability, a claimant bears “the burden of
proving an ‘inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which...has lasted or can be
expected to last for a continuous period of not less than 12
months.'” Batson, 359 F.3d at 1193-94
(quoting 42 U.S.C. § 423(d)(1)(A)).
determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. 20 C.F.R.
§§ 404.1520 and 416.920. The claimant bears the
burden of establishing disability at steps one through four
of this process. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). At the first step, the ALJ
considers whether the claimant is engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i)
and 416.920(a)(4)(i). At step two, the ALJ must determine
whether the claimant has any impairments that qualify as
severe under the regulations. 20 C.F.R. §§
404.1520(a)(4)(ii) and 416.920(a)(4)(ii). If the ALJ finds
that the claimant does have one or more severe impairments,
the ALJ will compare those impairments to the impairments
listed in the regulations. 20 C.F.R. §§
404.1520(a)(4)(iii) and 416.920(a)(4)(iii). If the ALJ finds
at step three that the claimant has an impairment that meets
or equals a listed impairment, then the claimant is
considered disabled. 20 C.F.R. §§
404.1520(a)(4)(iii) and 416.920(a)(4)(iii).
claimant's impairments do not meet or equal the severity
of any impairment described in the Listing of Impairments,
however, then the ALJ must proceed to step four and consider
whether the claimant retains the residual functional capacity
(RFC) to perform his or her past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the
claimant establishes an inability to engage in past work, the
burden shifts to the Commissioner at step five to establish
that the claimant can perform other work in the national
economy. 20 C.F.R. §§ 404.1520(a)(4)(v) and
found at step one that Plaintiiff met the insured status
requirements of the Act through September 30, 2015, and had
not engaged in substantial gainful activity since her April
20, 2009, alleged onset date. At step two, the ALJ found that
Plaintiff's degenerative disc disease of the cervical
spine was a severe impairment. At step three, the ALJ
concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled any
impairment described in the Listing of Impairments. The ALJ
further found that while Plaintiff's impairments could
reasonably be expected to cause her alleged symptoms, her
statements regarding the severity of those symptoms were not
entirely credible. The ALJ determined that Plaintiff had the
residual functional capacity to perform a full range of
medium work. The ALJ then found that Plaintiff was not
disabled at step four because she could perform past relevant
work as a customer service representative and equipment
rental manager. (Doc. 6 at 28-42).
who is now represented by counsel, argues the ALJ's
residual functional capacity assessment is not supported by
substantial evidence and raises several issues on appeal.
First, she argues the ALJ erred at step two by overlooking
and omitting several severe impairments. Second, Plaintiff
contends the ALJ did not provide sufficient reasons for
rejecting various medical and other source opinions. Third,
Plaintiff argues the ALJ did not provide sufficient reasons
for discounting her subject symptom testimony. Finally,
Plaintiff maintains the ALJ failed to fully and fairly
develop record in light of her mental impairments and
argues the ALJ erred at step two by failing to consider
several severe physical and mental impairments. An impairment
is “severe” if it significantly limits the
claimant's ability to perform basic work activities. 20
C.F.R. §§ 404.1520(c); 416.921. An impairment may
be considered non-severe if the evidence establishes only a
slight abnormality that has no more than a minimal effect on
an individual's ability to work. See SSR 85-28;
Yuckert v. Bowen, 841 F.2d 303, 306 (9th
Cir. 1988). The step two “inquiry is a de minimis
screening device [used] to dispose of groundless
claims.” Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996).
respect to her physical impairments, Plaintiff argues the ALJ
should have found that her left knee condition, insomnia,
gastroesophageal reflux disease (GERD) and temporomandibular
joint dysfunction were severe impairments. But Plaintiff does
not elaborate on this argument at all, and does not point to
any medical evidence establishing that these particular
impairments had anything more than a minimal effect on her
ability to work. In fact, the ALJ found no evidence that
Plaintiff had been treated for TMJ and noted the medical
records showed that her left knee condition had improved. The
ALJ further found that although ...