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Debbra J. Hill v. Michael J. Astrue

August 7, 2012


Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding D.C. No. 1:09-cv-00136-RFC

The opinion of the court was delivered by: Pregerson, Circuit Judge:



Argued and Submitted July 12, 2011-Portland, Oregon

Before: Alfred T. Goodwin, Harry Pregerson, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Pregerson



On December 7, 2006, Debbra Jo Hill ("Hill") filed for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act. Hill alleged disability beginning April 4, 2004. Hill claims that she is disabled due to unstable diabetes, eyesight problems, bipolar disorder, anxiety, depression, a back injury, a right shoulder injury, a history of two small strokes, attention deficit hyperactivity disorder, a seizure disorder, and unpredictable euphoria.

The Social Security Administration denied Hill's application, and denied it again after reconsideration. On September 24, 2008, Administrative Law Judge ("ALJ") Lloyd E. Hart- ford held a video hearing. Hill was represented by counsel and testified at the hearing, along with Dr. Monty Kuka, Ph.D., a non-examining medical expert, and James Fortune, a vocational expert. The ALJ issued a written decision denying Hill's application on April 6, 2009. The Appeals Council denied Hill's request for review, thereby making the ALJ's decision the final decision subject to judicial review. Hill then filed a complaint with the district court. The district court adopted the findings and recommendation of a magistrate judge, granted summary judgment in favor of the Commissioner, and affirmed the ALJ's decision. Hill appeals the district court's decision.

On appeal, Hill argues that the ALJ's decision denying all benefits was not supported by substantial evidence. Specifically, Hill argues that: (1) the ALJ ignored or failed to consider evidence favorable to Hill, including the medical opinions of Hill's counselors, therapists, and treating physicians; and, (2) the hypothetical question the ALJ posed to the vocational expert improperly excluded evidence of Hill's limitations. As discussed below, we agree with Hill that the ALJ failed to consider evidence favorable to Hill and posed an improper hypothetical to the vocational expert.*fn1 Accordingly, we reverse the district court's grant of summary judgment in favor of the Commissioner.


A. Hill's Background

Debbra Jo Hill is currently 54 years old. Hill did not graduate from high school, but she earned her GED. She worked as a certified nurse's assistant ("CNA") from 2000 until 2004 when she suffered a shoulder injury on the job. She had previously worked at a fast food restaurant, as a housekeeper, and as a telemarketer and bill collector for short periods of time. Hill was intermittently homeless and living out of her car or with friends in 2005 and 2006. At the time of the hearing before the ALJ, Hill lived by herself and worked part-time, approximately 15 to 20 hours a week, as a cashier/stocker at the Dollar Tree store in Great Falls, Montana, earning $7.21 an hour.

Hill was diagnosed with diabetes mellitus (type II) in 2002. Her diabetes was poorly controlled, in part because Hill could not afford to buy insulin and often relied on samples from clinics. She was also living out of her car for a time, and her doctors worried that she would not be able to properly monitor her blood sugar levels.

Hill injured her right shoulder and hand in 2004 and underwent two surgeries. She was limited to lifting no more than ten pounds, and has trouble reaching above her head. Hill was referred to physical therapy, but attended only 7 out of 23 scheduled sessions. Later, Hill had "fair compliance" with her attendance and "overall was improving."

Hill was diagnosed with bipolar disorder around 1998. She was last hospitalized for her bi-polar condition in July 2007, under the care of Dr. Mark Mozer, a psychiatrist. She was also diagnosed with borderline intellectual functioning by Dr. Lynn Johnson, a psychologist, after tests revealed that Hill's full scale IQ was 76, in the 5th percentile.

In 2000, Dr. Mary Ann Evans diagnosed Hill with panic disorder with agoraphobia, major depressive disorder, bipolar disorder, polysubstance dependence in resolution, cognitive disorder, chronic pain from her work injury, Hepatitis B and C, and other ailments. In 2001, Dr. Evans witnessed Hill having two limited symptom panic attacks. She was also diagnosed with diabetes, hypertension, hyperlipidemia, and chronic anxiety and panic syndrome by Dr. Steven Chrzanowski at Benefis Healthcare in 2006. While working at the Dollar Tree, Hill had panic attacks so severe that she had to go to the back room and collapsed. These attacks were witnessed by Hill's case manager and job coach, Patty Mills.

Hill's most recent panic attack occurred at work on March 7, 2008. Hill's manager at the Dollar Tree called Hill's job coach, Patty Mills, to intervene because Hill had been acting strangely. Ms. Mills ...

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