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Drummond v. Colvin

United States District Court, D. Nevada

August 14, 2014

AVIS V. DRUMMOND, Plaintiff,


C. W. HOFFMAN, Jr., Magistrate Judge.

This case involves judicial review of administrative action by the Commissioner of Social Security ("Commissioner") denying Plaintiff Avis V. Drummond's application for a period of disability and disability insurance benefits pursuant to Title II of the Social Security Act. 42 U.S.C. Ch. 7. Before the Court is Plaintiff's Motion for Reversal/Remand (#13)[1], filed on February 6, 2014, and the Commissioner's Opposition (##15-16), filed on March 6, 2014. This action was referred to the undersigned Magistrate Judge for a report of findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B)-(C)) and Local Rule IB 1-4.


I. Procedural History

On October 24, 2009, Plaintiff protectively filed an application for a period of disability and disability insurance benefits alleging she became disabled on April 11, 2002. (A.R. 58-64.)[2] Her claim was denied initially on January 15, 2010 and upon reconsideration on April 23, 2010. (A.R. 30-31, 47-49, 52-55.) On September 29, 2011, Plaintiff appeared for a hearing before Administrative Law Judge ("ALJ") Norman L. Bennett. (A.R. 23-42.) On August 18, 2011, the ALJ issued an unfavorable decision finding the Plaintiff has not been under a disability, as defined in the Social Security Act, from April 11, 2002 through the date last insured, September 30, 2008. (A.R. 19-29.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on May 16, 2013. (A.R. 4-7) On July 15, 2013, Plaintiff timely commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Motion/Application for Leave to Proceed in forma pauperis #1.)

II. The ALJ Decision

The ALJ followed the five-step sequential evaluation process set forth at 20 C.F.R. § 404.1520 and issued an unfavorable decision on August 18, 2011. (A.R. 19-29.) At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2008 and has not engaged in substantial gainful activity ("SGA") from April 11, 2002, the alleged onset date, through the date last insured ("DLI"). (A.R. 24.) At step two, the ALJ found that Plaintiff has the following severe impairments: right knee osteoarthritis, cervical strain, fibromyalgia with fatigue, and depressive disorder; the ALJ also found non-severe impairments of post-concussion syndrome with headaches, ringing in the ears, and temporormandibular joint disorder. (A.R. 24.) At step three, the ALJ found that, through the DLI, Plaintiff did not have an impairment or combination of impairments that meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 28.) In doing so, the ALJ found Plaintiff to have mild limitation in activities of daily living, moderate limitation in social functioning, moderate limitation in concentration, persistence, and pace, and no episodes of decompensation of extended duration. (A.R. 24.)

The ALJ found Plaintiff capable of performing a residual functional capacity ("RFC") for a reduced range of sedentary work including: lift and carry ten pounds occasionally and five pounds frequently, sit for six hours, stand or walk for two hours, occasional contact with supervisors, coworkers, and the general public, and simple tasks with simple instructions. (A.R. 25.) The ALJ found Plaintiff's statements concerning the intensity, persistence and limiting effects of these symptoms not fully credible. (A.R. 26.) At step four, the ALJ found Plaintiff not capable of performing her past relevant work ("PRW"). (A.R. 27.) The ALJ denied Plaintiff's application at step five in which he found that jobs exist in significant numbers in the national economy that Plaintiff can perform based on her age, education, work experience, and residual functional capacity. (A.R. 27.) In doing so, the ALJ considered Medical-Vocational Rules 201.28 and 201.21, which provide a framework for a finding of not disabled. (A.R. 28.) He also considered testimony from a vocational expert Eric Davis who listed jobs such as bookkeeping clerk, bill sorter, and hand packager as examples of jobs that Plaintiff could perform. Id. Based on all of these findings, the ALJ found Plaintiff not disabled and denied her application for a period of disability and disability insurance benefits.


I. Judicial Standard of Review

The court reviews administrative decisions in social security disability benefits cases under 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) states, "Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action... brought in the district court of the United States for the judicial district in which the plaintiff resides." The court may enter, "upon the pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." Id. The Ninth Circuit reviews a decision of a District Court affirming, modifying or reversing a decision of the Commissioner de novo. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2003).

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); see also Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner's findings may be set aside if they are based on legal error or not supported by substantial evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005). In determining whether the Commissioner's findings are supported by substantial evidence, the court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

Under the substantial evidence test, the Commissioner's findings must be upheld if supported by inferences reasonably drawn from the record. Batson, 359 F.3d at 1193. When the evidence will support more than one rational interpretation, the court must defer to the Commissioner's interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Flaten v. Sec'y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue before the court is not whether the Commissioner could reasonably have reached a different conclusion, but whether the final decision is supported by substantial evidence.

It is incumbent on the ALJ to make specific findings so that the court does not speculate as to the basis of the findings when determining if the Commissioner's decision is supported by substantial evidence. Mere cursory findings of fact without explicit statements as to what portions of the evidence were accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). The ALJ's findings "should be as comprehensive and analytical as feasible, and where ...

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