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Fortunato v. Colvin

United States District Court, D. Nevada

March 24, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


CAM FERENBACH, Magistrate Judge.

This matter involves Plaintiff Wendy Fortunato's appeal from Defendant Carolyn W. Colvin's final decision denying Fortunato's social security benefits. (Compl. (#3) at 2:2-24[1]). Before the court is Fortunato's motion for reversal and remand (#11). The Commission filed an opposition (#15); Fortunato did not reply. Also before the court is the Commissioner's unopposed cross-motion for affirmance (#14). For the reasons stated below, the court recommends denying Fortunato's motion and granting the Commissioner's motion.


The Fifth Amendment prohibits the government from depriving persons of property without due process of law. U.S. CONST. amend. V. Social security claimants have a constitutionally protected property interest in social security benefits. Mathews v. Eldridge, 424 U.S. 319 (1976); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). Where, as here, the Commissioner of Social Security renders a final decision denying a claimant's benefits, the Social Security Act authorizes the District Court to review the Commissioner's decision. See 42 U.S.C. § 405(g); see also 28 U.S.C. § 636(b) (permitting the District Court to refer matters to a U.S. Magistrate Judge).

The District Court's review is limited. The court examines the Commissioner's decision to determine whether (1) the Commissioner applied the correct legal standards and (2) the decision is supported by "substantial evidence." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). Substantial evidence is defined as "more than a mere scintilla" of evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

Under the "substantial evidence" standard, the Commissioner's decision must be upheld if it is supported by enough "evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) (defining "a mere scintilla" of evidence). If the evidence supports more than one interpretation, the court must uphold the Commissioner's interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This means that the Commissioner's decision will be upheld if it has any support in the record. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1988) (stating that the court may not reweigh evidence, try the case de novo, or overturn the Commissioner's decision if the evidence preponderates against it).


Fortunato's appeal presents one question: whether the Commissioner applied the right legal standard and correctly discounted Fortunato's testimony regarding her subjective symptoms at stage two. Before discussing this question, the court begins its analysis of Fortunato's appeal by reviewing the Commission's burden at stage two.

I. The Commissioner's Burden at Stage Two

To qualify for benefits under the Social Security Act, the claimant must demonstrate his or her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). When making this determination, the Commissioner engages in a five step inquiry.

At step two-the only relevant step here-the claimant must prove that her impairment is "severe, " which means that the impairment "significantly limits her physical or mental ability to do basic work activities." See 20 C.F.R. §§ 404.1520(c), 416.920(c). Under the de minimis step two standard, "an impairment or combination of impairments may be found not severe only if evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005).

The claimant's subjective symptoms must be considered at this step. 40 C.F.R. § 404.1529; Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996); Lamell v. Colvin, No. 12-05013-KAW, 2014 WL 282414, at *1 (N.D. Cal. Jan. 24, 2018). Symptoms are evaluated under a two-step analysis. SSR 96-7p. First, the Commissioner determines whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms. Id. ; Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). Second, the Commissioner must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work. Id.

In determining the credibility of the claimant's statements regarding the intensity, persistence, and limiting effects of his or her symptoms, the Commissioner must identify specific reasons for finding the statements credible or not credible. SSR 96-7p. These reasons must be supported by the evidence in the record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers ...

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