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Jessie C. B. v. Berryhill

United States District Court, D. Montana, Butte Division

March 21, 2019

JESSIE C. B., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Jeremiah C. Lynch, United States Magistrate Judge.

         Plaintiff 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 supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383(c). Plaintiff alleges disability since October 13, 2011, due to multiple sclerosis, degenerative disc disease, Raynaud's syndrome, arthritis, scoliosis, obsessive compulsive disorder, and memory loss. (Doc. 6 at 246). Plaintiff's claim was denied initially and on reconsideration, and by an ALJ after an administrative hearing. The Appeals Council denied Plaintiff's request for review, thereby 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 29 years old on the date her application was filed, and 31 years old at the time of the ALJ's decision in March 2017.

         I. Standard of Review

         “As with other agency actions, federal court review of social security determinations is limited.” Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). A court may set aside the Commissioner's decision “only if it is not supported by substantial evidence or is based on legal error.” Treichler, 775 F.3d at 1098 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 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). “Where evidence is susceptible for more than one rational interpretation, ” the court must uphold the ALJ's decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that ‘the ALJ's error was inconsequential to the ultimate nondisability determination.'” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoiting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9thCir. 2006)).

         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 v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 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 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 Plaintiff had not engaged in substantial gainful activity since February 13, 2015, the date her application was filed.[1] At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease, multiple sclerosis, scleroderma, mild cognitive deficit, anxiety disorder/obsessive compulsive disorder, somatoform disorder, and depression. The ALJ concluded at step three 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 impairments could reasonably be expected to cause her alleged symptoms, her statements regarding the severity of those symptoms were not entirely consistent with the medical and other evidence of record. The ALJ determined that Plaintiff had the residual functional capacity to perform a reduced range of light work. The ALJ concluded at step four that Plaintiff could not perform any past relevant work, but found her not disabled at step five because there were other jobs in the national economy that she could perform. (Doc. 6, at 86-100).

         Plaintiff argues the ALJ's decision is not supported by substantial evidence, and raises five issues on appeal. First, Plaintiff contends the ALJ erred by denying her motion to continue the administrative hearing. Second, Plaintiff maintains the Appeals Council erred by refusing to consider additional evidence she submitted in support of her request for review. Third, Plaintiff argues the ALJ erred at step two by not including fibromyalgia as a severe impairment. Fourth, Plaintiff argues the ALJ erred by finding she did not meet or equal the criteria of a listed impairment. Finally, Plaintiff argues the ALJ did not properly weigh the medical evidence and did not provide sufficient reasons for discounting certain medical and other source opinions.

         A. Motion to Continue

         Plaintiff argues the ALJ erred by denying her motion to continue the December 8, 2016 hearing, thereby depriving her of the full and fair hearing to which she was entitled.[2] See McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (an ALJ has a duty to conduct a full and fair hearing).

         Plaintiff was originally represented by a different attorney, who she retained in early January 2016. (Doc. 6, at 295). On January 5, 2016, with the assistance of her attorney, Plaintiff submitted a request for an administrative hearing. (Doc. 6, at 291). On January 28, 2016, the Commissioner sent Plaintiff a letter acknowledging her request and explaining that she would be notified in writing at least 20 days before the date of her hearing. (Doc. 6, at 296). On October 3, 2016, the Commissioner sent Plaintiff a Notice of Hearing, advising her that her hearing was scheduled to take place on December 8, 2016. (Doc. 6, at 311). On November 15, 2016, Plaintiff's attorney submitted a withdrawal from representation at Plaintiff's request and asked for a continuance of the hearing. (Doc. 6, at 339). Plaintiff's current counsel entered an appearance on November 22, 2016, and several days later submitted another request for a continuance. (Doc. 6, at 450).

         The ALJ addressed Plaintiff's request for a continuance at the beginning of the hearing, which proceeded as scheduled on December 8, 2016. Counsel explained that he had only recently entered an appearance and had not had time to adequately prepare for the hearing and schedule anticipated witnesses. (Doc. 6, at 191-92). The ALJ denied the motion for a continuance orally at the hearing, and set forth the basis for her ruling in her subsequent written decision. (Doc. 6, at 86-87; 191). The ALJ noted that Plaintiff had been represented by an attorney since January 2016, but apparently lost confidence in him and decided to change representatives just a few weeks before the hearing. (Doc. 6, at 86, 339). To accommodate counsel's concerns, the ALJ held the record open for 20 days to give him the opportunity to further review the file and make objections, and to submit additional evidence in support of Plaintiff's application. (Doc. 6, at 88).

         Plaintiff argues it was not sufficient for the ALJ to hold the record open for such a short period of time and claims she did not have time to “update [her] medical records through additional visits with [her] treating physicians.” (Doc. 14, at 7). Plaintiff takes the position that the ALJ was required to grant a continuance under 20 C.F.R. § 416.1436, which permits an ALJ to reschedule a hearing upon a showing of good cause.[3] Certain circumstances per se constitute good cause, including a death in the family or serious injury. 20 C.F.R. § 416.1436(f)(1). In other circumstances, the ALJ determines whether good cause exists based on the reason for the requested continuance, the supporting facts, and the impact of the proposed change on the efficient administration of the hearing process. 20 C.F.R. § 416. 1436(g). The regulation provides examples of circumstances that might give rise to good cause, including when the claimant's “representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing.” 20 C.F.R. § 1436(g)(ii). Because she retained current counsel approximately two weeks before the scheduled hearing, Plaintiff maintains she established good cause for a continuance and the ALJ erred by finding otherwise.

         Contrary to Plaintiff's argument, however, Section 1436(g) does not identify circumstances that per se constitute good cause; rather, it identifies certain factors the ALJ must consider in determining whether the requested continuance is warranted under the circumstances. 4 Soc. Sec. Law & Prac. § 51:26; Nuzzo v. Astrue, 2012 WL 685300, at *8 (N.D. Ohio March 2, 2012). Here, the ALJ noted that this was not a case in which the claimant was unable to find a representative until just before the hearing. Rather, the ALJ pointed out that Plaintiff had been represented by counsel for more than ten months - from the time she submitted her request for a hearing in January 2016 until she asked her counsel to withdraw for some unspecified reason just a few weeks before her scheduled hearing. The ALJ further found that Plaintiff's new counsel had not provided any persuasive justification for the appearance of witnesses rather than reliance on their records and opinion evidence, and kept the record open for 20 days after the hearing to allow counsel to make objections and submit additional evidence. The ALJ properly considered the factors set forth in Section 1436(g) and found that a continuance was not warranted under the circumstances. Thus, the ALJ did not err in denying Plaintiff's request for a continuance.

         B. Additional Evidence Submitted ...


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