Bliss v. O'Malley

Filing 13

ORDER; 1. The Commissioners final decision denying Blisss claim for Title II disability benefits and Title XVI supplemental security income benefits is AFFIRMED. 2. This case is DISMISSED with prejudice. 3. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge Brian Morris on 11/26/2024. (TLO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
JUSTIN J. BLISS,

Cause No. CV-24-021-GF-BMM

Plaintiff,
vs.

ORDER

MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant.

INTRODUCTION
Justin Bliss (“Bliss”) brings this action under 42 U.S.C. § 405(g), seeking
judicial review of an unfavorable decision by the Commissioner of Social Security
(“Commissioner”). (Doc. 2.) Bliss asks the Court to grant summary judgment on his
social security disability insurance benefits and supplemental security income
benefits or alternatively, to reverse and remand this action for further hearing by the
ALJ. (Id. at 3-4.) The Commissioner opposes Bliss’s motion and asks the Court to
uphold the ALJ’s decision. (Doc. 11.)
JURISDICTION
The Court retains jurisdiction over this action under 42 U.S.C. § 405(g).
Venue is proper given that Bliss resides in Cascade County, Great Falls, Montana.
28 U.S.C. § 1391(e)(1); L.R. 1.2(c)(3). (Doc. 2 at 1–2.)
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PROCEDURAL BACKGROUND
Bliss filed an application for Title II disability insurance benefits and Title
XVI supplemental security income benefits on September 17, 2019. (Doc. 5 at 258–
76.) Bliss’s claims were denied upon initial review and on reconsideration. (Id. at
174–75; 179–82.) Bliss requested a reconsideration before an Administrative Law
Judge (“ALJ”). (Id. at 204.) The ALJ issued an unfavorable decision on April 27,
2023. (Id. at 62–64.) The Appeals Council denied Bliss’s request to review that
decision on January 4, 2024. (Id. at 7–10.) This denial rendered the ALJ’s decision
the final decision of the Commissioner. Luther v. Berryhill, 891 F.3d 872, 876 (9th
Cir. 2018).
STANDARD OF REVIEW
The Court reviews the Commissioner’s final decision under the substantial
evidence standard. See 42 U.S.C. § 405(g). The decision will be disturbed only if it
is not supported by substantial evidence or is based on legal error. See id.; See also
Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Webb v. Barnhart, 433 F.3d 683, 678 (9th Cir. 2005) (internal citations
omitted). “Substantial evidence means more than a scintilla, but less than a
preponderance.” Smolen, 80 F.3d at 1279 (internal quotations omitted).
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The Court must “consider the record as a whole, weighing both the evidence
that supports and detracts from the [Commissioner’s] conclusion.” Green v. Heckler,
803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the findings not supported
by substantial evidence in the record, but it may not substitute its judgment for that
of the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999).
DISABILITY CRITERIA
A claimant is disabled for purposes of the Social Security Act if (1) the
claimant “suffers from a ‘medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months’” and (2) the impairment
or impairments are of such severity that, considering the claimant’s age, education,
and work experience, the claimant is unable to perform their previous work and also
cannot “engage in any other kind of substantial gainful work which exists in the
national economy.” Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (quoting 42 U.S.C. § 1382c(a)(3)(A), (B)).
Social Security Administration regulations provide a five-step sequential
process to determine disability. Bustamante v. Massanari, 262 F.3d 949, 953–54
(9th Cir. 2001); 20 C.F.R. § 416.920. The five steps are as follows:
1.

Is the claimant presently working in a substantially gainful
activity? If so, the claimant is not disabled within the
meaning of the Social Security Act. If not, proceed to step
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two. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
2.

Is the claimant’s impairment severe? If so, proceed to step
three. If not, 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 220,
Appendix 1? If so, the claimant is disabled. If not, proceed
to step four. See 20 C.F.R. §§ 404.1520(d), (e) 416.920(d),
(e).

4.

Is the claimant able to do any work that he or she has done
in the past? If so, the claimant is not disabled. If not,
proceed to step five. See 20 C.F.R. §§ 404.1520(f),
416.920(f).

5.

Is the claimant able to do any other work? If so, the
claimant is not disabled. If not, the claimant is disabled.
See 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

Bustamante, 262 F.3d at 954. The claimant bears the burden of proof in the first four
steps. Id. at 953. The Commissioner bears the burden at step five. Id. at 953–54.
FACTUAL BACKGROUND
I.

ALJ Determination
The ALJ determined at the first step that Bliss met the insured status

requirements. (Doc. 5 at 67.) The ALJ further determined that Bliss had engaged in
substantial gainful activity since his alleged onset date of January 30,2018 (Id. at
68.) Bliss was employed from September 2018 to March 2019 and made over the
monthly substantial gainful threshold amounts. (Id.) The ALJ determined that Bliss

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had not engaged in substantial gainful activity over a continuous 12-month period.
(Id.)
The ALJ determined at step two that Bliss suffered from the following severe
impairments: lumbar degenerative disc disease, cervical degenerative disc disease,
residual effects of right knee surgery, emphysema/chronic obstructive pulmonary
disease, post-traumatic stress disorder, bipolar disorder, depressive disorder, and
schizophrenia. (Id.) The ALJ determined that Bliss’s gout, hypertension, obstructive
sleep apnea, substance abuse, obesity, COVID-19, varicose veins, and venous
insufficiency and were non-severe. (Id.)
The ALJ noted that Bliss’s gout, sleep apnea, COVID-19, and hypertension
did not interfere in any way that would impact Bliss’s ability to work. (Id.) The ALJ
also accounted for Bliss’s treatment of his varicose veins and ability to elevate his
legs during breaks. (Id. at 69.) The ALJ noted no limitations created by Bliss’s
obesity. (Id.)
The ALJ rejected Bliss’s own subjective reporting that he had short term
memory loss, head trauma and vertigo. The ALJ noted that none of Bliss’s medical
providers confirmed his self-reported head injuries and no formal diagnosis was
made. (Id. at 70.)
At step three, the ALJ found that Bliss lacked an impairment or combination
of impairments that met or medically equaled the severity described in the Listing
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of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1, the Social Security regulations.
(Id. at 70-71.)
At step four, the ALJ determined Bliss’s residual functional capacity (“RFC”).
(Id. at 71.) The ALJ followed a two-step process. The ALJ determined that Bliss’s
“medically determinable impairments could reasonably be expected to produce
[Bliss’s] symptoms.” (Id. at 73.) The ALJ concluded, however, that Bliss’s
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence
in the record.” (Id.) The ALJ determined that Bliss possesses the RFC to perform
light work except:
the claimant can stand/walk four hours of an eight-hour day, sit for six
hours of any eight hour day, occasionally climb ramps and stairs, never
climb ladders, ropes, and scaffolds, occasionally balance, stoop, kneel,
and crouch, never crawl, frequently reach, handle, and finger, can never
work with heavy machinery with fast moving parts or unprotected
heights, can never work in environments with exposure to extreme cold
or vibration, can occasionally work in environments with exposure to
fumes, odors, dusts, gasses, and other respiratory irritants, is able to
understand and remember simples tasks, can maintain concentration
persistence or pace for simple tasks in two hour periods, is limited to
simple work related decisions, can have occasional public and coworker contact, can have occasional supervisory contact other than
during periods of explanation (defined as the initial trainings period
and/or explanation of changes to routine tasks, and is limited to job
routines consistent with simple tasks, and must have the ability to
elevate legs during scheduled breaks.
(Id. at 71-72)
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(Id. at 32.) The ALJ determined that Bliss lacked the RFC to perform his past
relevant work as a cook, kitchen manager, cook helper, and meat cutter. (Id. at 81.)
At step five, the ALJ found that Bliss proved capable of engaging in other
work that existed in significant numbers in the national economy. (Id. at 47.) The
vocational expert (“VE”) identified the following jobs that exist for a person with
Bliss’s RFC, age, education, and work experience: routing clerk, small products
assembler, mail clerk, or other similarly situated jobs. (Id. at 82.) Accordingly, the
ALJ found Bliss “not disabled” under the relevant sections of the Social Security
Act. (Id.)
II.

Bliss’s Position
Bliss contends that the ALJ failed to 1) support her decision that Bliss could

sustain work related activities with substantial evidence from the record; 2) discuss
Bliss’s ability to perform sustained work activities in an ordinary work setting on a
regular and continuing bases; and 3) create a residual functional capacity that
contained a discussion and analysis of relevant evidence. (Doc. 9 at 19-20.) Bliss
argues that the ALJ’s alleged failure to consider certain findings in the medical
record and other evidence renders her decision inadequate. (Id. at 20.) Bliss contends
that the ALJ’s determination that Bliss can sustain work related activities is not
supported by the substantial evidence in the record and that Bliss should be
determined disabled. (Id.)
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III.

Commissioner’s Position

The Commissioner asserts that the ALJ reasonably assessed the medical
opinion evidence and the record and properly discounted Bliss’s subjective reporting
of his physical and mental impairments. (Doc. 11 at 2.) The Commissioner also
argues that the ALJ adequately reasoned her decision based on the objective medical
evidence and Bliss’s subjective testimony. (Id. at 5-7.) The Commissioner asserts
that the record as a whole supported the ALJ’s determination of Bliss’s residual
function capacity and properly included Bliss’s limited capacity to work. (Id. at 15–
16.)
DISCUSSION
I.

Whether the ALJ failed to properly evaluate the opinion of Dr.
Martin.
Bliss raises issues with the ALJ’s evaluation of the opinion of Dr. Martin.

Consistency and supportability constitute the most important factors in evaluating
the persuasiveness of medical opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
Consistency means the extent to which medical opinions or findings prove consistent
with the evidence from other medical and nonmedical sources in the claim. 20 C.F.R.
§§ 404.1520c(c)(2), 416.920c(c)(2). Supportability means the extent to which a
medical source supports a medical opinion with objective medical evidence and
explanations pertaining thereto. 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1).

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Dr. Martin assessed Bliss through physical testing on October 7, 2019. (Doc.
5 at 515–19.) Dr. Martin determined that Bliss could lift 15 pounds from floor to
waist and 25 pounds from waist to crown and can occasionally carry 35 pounds. (Id.
at 517.) Dr. Martin opined that Bliss could tolerate 3-4 hours per day of non-material
handling tasks by alternating sitting and walking tasks and had to use knee braces to
walk and a sturdy object to kneel. (Id. at 515-17.) Dr. Martin further opined that
Bliss should avoid frequent lifting and carrying. (Id.) Frequent is defined as
occurring one to two thirds of the day.
The ALJ found Dr. Martin’s opinion partially persuasive. (Id. at 79.) The ALJ
adequately evaluated the consistency and supportability of Dr. Martin’s opinion with
the other medical evidence in the record. The ALJ highlighted portions of Dr.
Martin’s opinion that Dr. Martin failed to consider. First, the ALJ observed that Dr.
Martin’s statements failed to consider Bliss’s medical history prior to his alleged
onset date. (Id.) The ALJ found that based on Bliss’s past back and neck pain limited
him in lifting, and he could not in fact lift 35 pounds either occasionally or
frequently. The ALJ appropriately discounted the persuasiveness of the opinions
expressed by Dr. Martin that she failed to consider, such as Bliss’s prior x-rays,
limited pulmonary function, and prior knee surgery. (Doc. 5 at 80.) The ALJ
determined that Bliss’s gain, strength, tone, and reflexes remained intact and

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balanced Dr. Martin’s opinion with the entire medical record. The ALJ accounted
for Bliss’s limitation in the residual functional capacity determination.
II.

Whether the ALJ failed to properly evaluate the opinion of Dr. Orvis.
Bliss contends that Dr. Orvis’s opinion that Bliss is limited to “lifting and

carrying up to 20 pounds and sitting, standing, walking, stair climbing, crouching
and static forward flexed positions should be limited to occasional, and kneeling
should be limited to ‘rarely’” should have been considered by the ALJ. (Doc. 9 at
20.) Dr. Orvis performed physical testing on Bliss to determine that Bliss should be
limited to occasionally lifting and carrying 20 pounds.
The ALJ considered Dr. Orvis’s opinion and gave reasons why she did and
did not agree with the opinion. The ALJ found Dr. Orvis’s opinion partially
persuasive. The ALJ cited the same previous medical history of Bliss that Dr. Orvis
should have considered when making the assessment that Bliss can lift 20 pounds.
For example, that Bliss had chronic back pain, prior x-rays showing degenerative
changes and pulmonary limitations. (Doc. 5 at 80.) The ALJ properly considered Dr.
Orvis’s opinions and found that Bliss “is limited to no greater than occasionally
lifting 20 pounds.” (Id.) This conclusion is on par with the rest of the substantial
medical evidence in the record. The ALJ balanced Dr. Orvis’s opinion with the other
medical evidence in the record and determined that Bliss cannot lift 20 pounds

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frequently, but can occasionally lift 20 pounds, and can lift lower weights more
frequently. (Id.)
III.

Whether the ALJ failed to properly evaluate other medical
evaluations and reviewed the record for supportability and
consistency.

Bliss contends that the ALJ failed to properly consider the evaluation by Dr.
Barnwell for Bliss’s disability consultation. (Doc. 9 at 21.) The ALJ found Dr.
Barnwell’s opinion partially persuasive. (Doc. 5 at 80.) The ALJ cited the same prior
medical history as above and found that limiting Bliss’s residual functional capacity
adequately incorporated part of Dr. Barnwell’s opinion that Bliss could “do light
standing and walking and be allowed to take sit down breaks as needed to rest his
back and knees as well as to catch his breath.” (Doc. 5 at 722.) The ALJ properly
considered Dr. Barnwell’s opinion in light of the other medical evidence in the
record and found it partially persuasive. The ALJ determined that the record did not
support a need for additional breaks beyond what would be required in a normal
workday. (Id. at 81.)
Bliss further argues that based on the opinions of the above physicians that no
other objective evidence exists to the contrary. The ALJ’s opinion and rational says
otherwise. The ALJ adequately supported her decision by assessing physicians’
opinion in light of the medical evidence within the record and Bliss’s medical
history. The ALJ weighed the medical evidence to determine the residual function
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capacity and limited Bliss to light work. The ALJ determined that Bliss’s statements
alongside the objective medical evidence supported a finding that Bliss could not
work jobs he previously had worked, but instead jobs that were available in the
national economy. (Id. at 81-82.) The ALJ determined that Bliss could perform at a
capacity of light work.
The ALJ further considered Bliss’s alleged mental impairments against the
objective medical evidence. The ALJ reviewed the medical records and found that
Bliss’s reported hallucinations were “distant” and had improved based on his
medications. (Doc. 5 at 77.) The ALJ supported her decision by citing medical
evaluations that reported Bliss as being “pleasant as always” and being engaged
during appointments. The ALJ did not “cherry pick” the medical evidence as Bliss
suggests and properly considered the entire medical record and explained her
reasoning.
IV.

Whether the ALJ properly crafted a residual functional capacity
based on the testimony of the vocational expert.

Substantial evidence in the record supports the ALJ residual functional
capacity determination. The residual functional capacity is “the individual’s
maximum remaining ability to do sustained work activities in an ordinary work
setting on a regular and continuing basis, and the residual functional capacity
assessment must include a discussion of the individual abilities on that basis.” SSR
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96-8p at *2. The ALJ can subsume the ability to sustain employment in the residual
functional capacity. Perez v. Barnhart, 415 F. 3d 457, 466 (5th Cir. 2005). The ALJ
properly used the medical record to craft the Bliss’s residual functional capacity and
supports her decision by substantial evidence. The ALJ determined that Bliss could
“stand/walk four hours of an eight-hour day, sit for six hours of any eight-hour day,
occasionally climb ramps and stairs, never climb ladders, ropes, and scaffolds,
occasionally balance, stoop, kneel, and crouch, never crawl, frequently reach,
handle, and finger.”
Bliss contends that the ALJ failed to ask questions to the vocational expert
that allowed him to incorporate all of Bliss’s limitations. (Doc. 9 at 32.) The ALJ
posed questions that included Bliss’s limitations such as his limited ability to stand
for long periods and needing to elevate his legs during regularly scheduled breaks.
The ALJ did not ask questions based on contentions that were absent in the record
and properly included Bliss’s limitations in the hypotheticals.
CONCLUSION
The Court finds that substantial evidence exists in the record to support the
ALJ’s determination that certain medical opinions proved unpersuasive, partially
persuasive, or persuasive. The Court also finds that substantial evidence exists to
support the ALJ’s balance of RFC limitation offered by each physician and struck a

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proper balance between Bliss’s subjective testimony and the objective medical
evidence. The ALJ did not err in these determinations.

ORDER
Accordingly, IT IS ORDERED:
1. The Commissioner’s final decision denying Bliss’s claim for Title II disability
benefits and Title XVI supplemental security income benefits is
AFFIRMED.
2. This case is DISMISSED with prejudice.
3. The Clerk of Court is directed to enter judgment accordingly.
DATED this 26th day of November, 2024.

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