United States District Court, D. Montana
SHARYL L. GLENDENNING, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
February 26, 2018, Plaintiff Sharyl L. Glendenning
(“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”)
regarding the denial of her claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 416 and 423. (Doc. 1.) On June 29, 2018, the
Commissioner filed the Administrative Record
(“A.R.”). (Doc. 6.)
before the Court is Plaintiff’s motion for summary
judgment, seeking remand or reversal of Defendant’s
denial and an award of disability benefits. (Doc. 11.) The
motion is fully briefed and ripe for the Court’s
review. (Docs. 12, 13.)
reasons set forth herein, and after careful consideration of
the record and applicable law, the Court finds the
ALJ’s decision should be REMANDED for
further administrative proceedings.
filed an application for disability benefits on December 29,
2014.(A.R. 323-326.) Plaintiff alleges she has
been unable to work since April 25, 2013 due to her disabling
conditions. (A.R. 323.) According to the record, Plaintiff
was last insured for disability benefits on December 31,
2014. Therefore, she must establish disability on or before
that date to qualify for disability benefits.
Social Security Administration denied Plaintiff’s
application initially on March 13, 2015, and upon
reconsideration on July 29, 2015. (A.R. 234-239.)
August 7, 2015, Plaintiff requested a hearing on the Social
Security Administration’s determination. (A.R. 240.)
Administrative Law Judge Michele Kelley (the
“ALJ”) held a hearing on October 18, 2016. (A.R.
39-73.) On November 9, 2016, the ALJ issued a written
decision finding Plaintiff not disabled. (A.R. 19-38.)
requested review of the decision by the Appeals Council.
(A.R. 10.) On January 6, 2018, the 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 the 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
October 18, 2016. (A.R. 39-73.) Plaintiff testified that she
was unable to work because of bilateral tarsal tunnel
syndrome with significant scarring, meniscal tear of the left
knee, degenerative arthritis in both knees, and degenerative
disc disease in the lumbar spine. (A.R. 46.) Plaintiff
explained that her ailments prevent her from performing even
sedentary work. Id.
her physical limitations, Plaintiff testified that she has
swelling and pain in her feet. She explained that has she had
multiple surgeries on her feet to alleviate her problems.
(A.R. 50-51.) Plaintiff stated the pain in her left foot
returned after the surgeries, leaving her unable to stand at
her job, which required her to miss work. (A.R. 51.) Her last
surgery was in July 2010. Id.
also discussed how her foot problems have restricted her
mobility. She testified she is only able to walk for fifteen
minutes, and she can only stand for five to ten minutes.
(A.R. 53.) After walking or standing she must take a break
because of the pain, swelling, and imbalance associated with
her leg and foot problems. Id. She also testified
that she can sit in a chair without elevating her legs for
only five minutes before sitting becomes painful. (A.R. 54.)
Plaintiff explained that her left leg becomes swollen more
often, and is more problematic, than her right leg.
Id. Nevertheless, she does have problems with her
right knee as well. Id.
testified that at home she elevates her legs on her ottoman
“all the time” – “at least 75 percent
of the day.” (A.R. 55-56.) If she for some reason
cannot elevate her legs, she “just deal[s] with
it” by moving and stretching them. (A.R. 57.) She
explained the pain she experiences is severe at times and
interferes with her ability to focus. Id.
also testified that she began experiencing anxiety when her
foot problems started. (A.R. 51.) She explained that when the
anxiety occurs, she becomes hot, sweaty, shaky, and loses
focus with her eyes. (A.R. 52.) The episodes last about
fifteen minutes, and it takes her two to three hours to
recover from each episode because she is so ...