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Lashley v. Berryhill

United States District Court, D. Montana, Billings Division

September 30, 2018

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


          TIMOTHY J. CAVAN United States Magistrate Judge

         On August 17, 2017, Plaintiff Sally Marie Lashley (“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” or “Defendant”) 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. 1.) On October 17, 2017, Defendant filed the Administrative Record (“A.R.”) (Doc. 6).

         Presently before the Court is Plaintiff's motion for summary judgment, seeking reversal of Defendant's denial and remand for an award of disability benefits, or alternatively for further administrative proceedings. (Doc. 13.) The motion is fully briefed and ripe for the Court's review. (Docs. 14-15.)

         For the reasons set forth herein, and after careful consideration of the record and the applicable law, the Court hereby finds that 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 on November 7, 2013. (A.R. 381-397.) Plaintiff alleged she has been unable to work since July 27, 2012 due to her disabling condition.[1] (A.R. 381.) The Social Security Administration denied Plaintiff's application initially on March 12, 2014, and upon reconsideration on August 7, 2014. (A.R. 235-260; 261-288.)

         On September 11, 2014, Plaintiff filed a written request for a hearing. (A.R. 301-302.) Administrative Law Judge Michele Kelley (the “ALJ”) held a hearing on July 28, 2015 (A.R. 77-115), and a supplemental hearing on January 20, 2016. (A.R. 47-76.) On February 18, 2016, the ALJ issued a written decision finding Plaintiff not disabled. (A.R. 27-40.)

         Plaintiff requested review of the decision, and on June 23, 2017, 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 in Billings, Montana on July 28, 2015 (A.R. 77-115), and a supplemental hearing was held on January 20, 2016 (A.R. 47-76). Plaintiff testified about her current living situation. (A.R. 87-92.) She explained that she lives with her 84 year old mother. (A.R. 92.) Her 8 year old granddaughter also visits their home, but Plaintiff does not babysit her alone. (A.R. 94-95.) Plaintiff stated that she will sometimes sit on the couch and play a game or do a puzzle with her granddaughter. (A.R. 94.)

         Plaintiff also testified that her ability to assist around the home is very limited. Plaintiff described her mother as being very independent, and stated she does all the cooking. (A.R. 92.) Plaintiff tries to help her mother with other household chores, but she has to pace herself in doing so. (A.R. 92-93.) She will vacuum one room a day; but if she does more than that, she will trigger a muscle spasm and exacerbate her symptoms. (Id.) She does not sweep or mop because it hurts her back. (A.R. 98.) Plaintiff does her laundry, but indicated her mother washes her own clothes. (A.R. 99.) Plaintiff stated she is only able to do chores for 10-15 minutes at a time before she needs to take a break. (A.R. 100.)

         As to her physical limitations, Plaintiff testified she is in pain every day. (A.R. 94.) Plaintiff stated that laying down is the best position to avoid aggravating her symptoms, and she estimated she spends about 3/4 of the month laying down the majority of the day. (A.R. 96-97.) She also sleeps a lot due to her medication. (A.R. 95-96.) Plaintiff testified that she can only walk for 5 to 10 minutes. (A.R. 100.) She explained that she has a cane and will use it at times. (A.R. 101.) Other times, she carries it with her, in the event her muscles spasm and her back “locks up.” (Id.) Plaintiff stated that she cannot be on her feet for any length of time. (A.R. 54.) Plaintiff said that she only showers approximately once per week because it is painful when the water hits her skin. (A.R. 62.) Plaintiff said her ability to lift and carry things is also impaired due to limitations of her upper back, neck, arms and shoulder. (A.R. 57.) She indicated Dr. Nichols had limited her to lifting 10 pounds. (A.R. 58.) Plaintiff also explained that if her fibromyalgia flares up, she's not able to do anything for several days. (A.R. 59.)

         Plaintiff also testified that she has difficulty concentrating and focusing. (A.R. 64-65.) She said she has problems meeting deadlines, doing paperwork, and remembering if she took her medications. (A.R. 65-66.) She ...

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