United States District Court, D. Montana, Butte Division
JESSIE C. B., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Jeremiah C. Lynch, United States Magistrate Judge.
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.
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
Standard of Review
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
Burden of Proof
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. §
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).
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
found at step one that Plaintiff had not engaged in
substantial gainful activity since February 13, 2015, the
date her application was filed. 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).
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.
Motion to Continue
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. See McLeod v.
Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (an ALJ
has a duty to conduct a full and fair hearing).
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,
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,
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. 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.
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.
Additional Evidence Submitted ...