United States District Court, D. Montana, Billings Division
TIMOTHY J. CAVAN United States Magistrate Judge
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).
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.
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
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. (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.)
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.
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.
Scope of Review
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).
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 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.
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 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),
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 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.)
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.
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.)
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 ...