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Morris v. Colvin

United States District Court, D. Nevada

October 6, 2014

KAREN B. MORRIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court for consideration is the Motion to Remand (ECF No. 13) filed by Plaintiff Karen B. Morris ("Plaintiff") and the Cross-Motion to Affirm (ECF No. 14) filed by Defendant Carolyn W. Colvin ("Defendant"). These motions were referred to the Honorable Cam Ferenbach, United States Magistrate Judge, for a report of findings and recommendations pursuant to 28 U.S.C. §§ 636 (b)(1)(B) and (C). On March 25, 2014, Judge Ferenbach entered the Report and Recommendation (ECF No. 17), recommending Plaintiff's Motion to Remand be denied and Defendant's Cross-Motion to Affirm be granted. Plaintiff filed her Objection to the Report and Recommendation (ECF No. 18) on April 4, 2014. Defendant filed her Response to the Objection (ECF No. 19) on April 17, 2014.


Pursuant to Title II of the Social Security Act, Plaintiff applied for disability insurance benefits on November 2, 2010, alleging a period of disability beginning on October 21, 2008 due to spinal injury, shoulder surgery, and head trauma. (Administrative Record ("A.R.") 113-24, 130). Plaintiff's II application was denied, and following a hearing on April 26, 2012, an Administrative Law Judge ("ALJ") issued a decision on May 15, 2012 denying Plaintiff's claim for benefits. ( Id. 16-29).

At the hearing on April 26, 2012, the ALJ applied the five-step sequential evaluation process established by the Social Security Administration to determine whether Plaintiff was disabled.[1] ( Id. 19-26). In assessing Plaintiff's residual functional capacity ("RFC") at the beginning of step four of the analysis, the ALJ determined that Plaintiff's testimony about her disability was not credible. ( Id. 22-24). Based in part on this finding on credibility, at step five of the analysis, the ALJ determined that there were a significant number of alternate occupations that Plaintiff could hold existing in the national economy, and, therefore, Plaintiff was not disabled. ( Id. 24-25).

Following the ALJ's decision, Plaintiff filed a Request for Review, which was denied by the Appeals Council on August 5, 2013. (A.R. 11). Subsequently, on October 28, 2013, Plaintiff filed her Complaint (ECF No. 3) before this Court seeking a reversal of the ALJ's decision.


A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report and Recommendation to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).

A federal court's review of an ALJ's decision on social security disability is limited to determining only (1) whether the ALJ's findings were supported by substantial evidence and (2) whether the ALJ applied the proper legal standards. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Delorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is "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." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009), quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).


The sole argument Plaintiff raises in her Motion to Remand is that the ALJ failed to apply the correct legal standard and articulate a specific, clear, and convincing reason for rejecting Plaintiff's testimony. (Mot. to Remand 5:14-20:5).

Determining the credibility of a claimant's testimony about subjective symptoms is a twostep process. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). "Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'" Id. (quoting Smolen, 80 F.3d at 1281).

In the Report and Recommendation, Judge Ferenbach found that the ALJ correctly applied the two-step process for assessing a claimant's credibility. (Report and Recommendation 4:23-5:15, ECF No. 17). Judge Ferenbach noted that the ALJ first determined that Plaintiff had presented objective medical evidence of an underlying impairment to her neck, shoulder, hip, and lower back. ( Id. 4:23-5:1). At step two, however, the ALJ identified several reasons for discrediting Plaintiff's testimony about the severity of her symptoms, including: (1) Plaintiff did not work from 1997 through 2003, which is five years before the alleged onset date of her disability; (2) Plaintiff's gait was within normal limits; (3) Plaintiff did not use any assistive walking devices; (4) Plaintiff's spinal forward flexion was within normal limits; (5) flexion and extension of her upper back (i.e., thoracic spine) was painless; (6) treatment notes regarding her right shoulder demonstrated that Plaintiff was "doing well" after surgery; and (7) Plaintiff produced negative results in straight leg raising tests. ( Id. 5:2-9). Judge Ferenbach, therefore, concluded that the ALJ provided specific, clear and convincing reasons for rejecting Plaintiff's testimony. ( Id. 6:3-7).

In her Objection, Plaintiff argues that the reasons the ALJ discredited Plaintiff's testimony cited by Judge Ferenbach are not specific, clear, and convincing, and, consequentially, are insufficient to meet the second part of the test in Lingenfelter. (Objection 5:11-7:13, ECF No. 18). In support of this position, Plaintiff cites to various medical evidence in the record that supports her ...

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