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R.L.R. v. Berryhill

United States District Court, D. Montana, Missoula Division

September 28, 2018

R. L. R., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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).

         Plaintiff was 52 years old at the time of her alleged onset date and 59 years old at the time of the ALJ's decision.

         I. Standard of Review

         This 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).

         “The 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).

         II. Burden of Proof

         To 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)).

         In 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).

         If the 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 416.920(4)(v).

         III. Discussion

         The ALJ 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).

         Plaintiff, 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 unrepresented status.

         A. Severe Impairments

         Plaintiff 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).

         With 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 ...


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