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Blaine v. Berryhill

United States District Court, D. Montana, Helena Division

November 29, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         United States Magistrate Judge John Johnston entered his Findings and Recommendations on August 2, 2018, recommending that the Social Security Commissioner's decision to deny disability benefits to Cody Annette Blaine ("Blaine") be reversed and remanded for further consideration. The Commissioner timely objects, and is therefore entitled to a de novo review of those portions of the Findings and Recommendations to which she specifically objects. 28 U.S.C. § 606(b)(1). Absent objection, the Court will review for clear error. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Thomas v. Am, 474 U.S. 140, 149 (1985). For the reasons explained below, the Court adopts in part and rejects in part the Findings and Recommendations. The Court adopts the recommendation to reverse the Administrative Law Judge's ("ALJ") residual functional capacity ("RFC") determination, albeit for a different reason, rejects the recommendation that the ALJ properly dismissed Blaine's subjective symptom testimony, and adopts the remaining findings and recommendations in full.

         Standard of Review

         This Court applies a deferential standard of review to the Social Security Administration's decision, focusing on procedural rather than substantive issues. The Court must affirm the decision if it is "supported by substantial evidence, and if the Commissioner applied the correct legal standards." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). This determination requires a review of the "record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. The Court draws inferences in favor of the Commissioner, deferring to the Commissioner's decision "if evidence exists to support more than one rational interpretation." Batson, 359 F.3d at 1193.

         Because the parties are familiar with the facts of this case, and because they are detailed in Judge Johnston's Findings and Recommendations, the Court will only reference the facts as necessary to understand this Order.


         Following the five-step sequential evaluation process required under the federal regulations implementing the Social Security Act, the ALJ determined that Blaine is not disabled because she retained the RFC to perform her past work. See 20 C.F.R. § 404.1520(a)(4) (i)-(v). After obtaining a final agency decision, Blaine filed in district court. (Doc. 1.) Upon review, Judge Johnston found that the ALJ erred by failing to include any limitations in Blaine's RFC to reflect her headaches, which was the primary cause of her disability. (Doc. 14 at 18.) Reviewing Blaine's remaining claims, Judge Johnston determined that the ALJ properly rejected the opinions and testimony of Blaine's treating physician, Blaine's own testimony, and the lay witness testimony. (Id. at 37-38.) Accordingly, Judge Johnston recommended that both parties' motions for summary judgment be granted in part and dismissed in part. (Id. at 38.) The Commissioner objects only to Judge Johnston's first finding concerning the RFC determination. (Mat 3.) Blaine raises no objections. (Doc. 16.) However, because Judge Johnston's findings regarding the RFC requires the Court to review the ALJ's adverse credibility determination, the Court will review both findings de novo and the rest for clear error.

         I. Residual Functional Capacity

         At step four, the ALJ determined that Blaine was not disabled because, despite her medical impairments, Blaine retained the RFC to perform her past relevant work. The ALJ based this finding upon his determination that Blaine's testimony about the frequency and duration of her headaches was not credible, and that she suffers from "moderate, rather than debilitating, pain levels less frequently than alleged." (Doc. 7 at 23.)

         Blaine's argument is two-fold: first, she argues the ALJ erred because he determined at step two that Blaine suffered from severe headaches, but made no accommodation for such in his RFC determination. (Doc. 11 at 9.) Second, Blaine argues that the ALJ's RFC determination contained no limitation for any headaches, severe or otherwise. (Doc. 13 at 3.)

         The Commissioner responds that the ALJ's determination at step two does not control the outcome at step four, because the step two determination is a threshold finding. (Doc. 15 at 5 (quoting Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) ("Step two is merely a threshold determination meant to screen out weak claims. It is not meant to identify the impairments that should be taken into account when determining the [residual functional capacity.]").) This argument is well-taken. The Court agrees that under Buck a finding at step two does not govern the outcome at step four. Nonetheless, in assessing a claimant's RFC, the ALJ was required to consider both severe and non-severe medical impairments. 20 C.F.R. §§ 404.1545, 416.945. The ALJ erred by failing to do so.

         RFC is "the most [one] can still do despite [one's] limitations ... based on all the relevant medical and other evidence in [the] case record." 20 C.F.R. § 416.945(a)(1). The ALJ determines RFC based upon medical records, physicians' opinions, and the claimant's description of her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a)(3). In assessing a claimant's RFC, the ALJ is required to consider all of the claimant's medically determinable impairments, including those impairment that are not "severe," and any related symptoms that affect what the claimant can do in a work setting. 20 C.F.R. §§ 404.1545, 416.945. "Moreover, [the regulations] direct that 'careful consideration' be given to any evidence about symptoms 'because subjective descriptions may indicate more severe limitations or restrictions than can be shown by medical evidence alone.'" Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing Soc. Sec. Ruling 96-8p 1996 WL 374184, at *5 (July 2, 1996).) However, an ALJ is not required to take into account claimed limitations that the ALJ found to be incredible or not supported by the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

         In rendering a credibility determination, the ALJ engages in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ first determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. Where the claimant makes this showing, and absent evidence of malingering, the ALJ may only reject a claimant's testimony about the severity of her symptoms by providing "specific, clear and convincing reasons." Id. "This is not an easy requirement to meet: 'The clear and convincing standard is the most demanding required in Social Security cases.'" Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014).

         Here, the ALJ determined at step one of the process that Blaine suffered from a medically determinable impairment that could reasonably be expected to produce the symptoms of which she complains. (Doc. 7 at 23.) The ALJ made no finding that Blaine was malingering. (See id.) At step two, the ALJ largely rejected Blaine's testimony as to the severity and the frequency of her headaches, and concluded that Blaine was not credible for four reasons: Blaine's testimony at the hearing was (1) inconsistent with the generally benign medical findings, including her MRI scan (Doc. 12 at 9); (2) inconsistent with statements made to her medical providers, including that she suffers from "severe headaches" only from "time to time," (id. at 11); (3) inconsistent with her reports of improvement on medication (id.); and finally, (4) inconsistent with her reports of daily activities (id. at 12). Accordingly, ...

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