Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nemergut v. Astrue

United States District Court, D. Nevada

March 12, 2015

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Report and Recommendation ("R&R") of United States Magistrate Judge George W. Foley. (ECF No. 25). Plaintiff Sarah Nemergut filed an Objection, (ECF No. 26), to which Defendant Michael J. Astrue responded, (ECF No. 27). For the reasons discussed below, the Court will adopt Judge Foley's R&R in full.


Plaintiff brings this action against Defendant Michael Astrue in his capacity as the Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g). (Compl., ECF No. 1). Plaintiff seeks judicial review of a final decision denying her claim for Social Security disability benefits ("SSD benefits"). ( Id. ).

Plaintiff filed a claim for SSD benefits on July 14, 2006, which was denied initially and upon reconsideration. ( Id. at 2:1-22). Plaintiff claims that she suffers from Cushing's disease, depression, obesity, and hypopituitarism that rendered her unable to work as of May 1, 2004. ( Id. at 1:25-26). Plaintiff's claim was heard by an Administrative Law Judge ("ALJ") on June 8, 2011. ( Id. at 2:5-6). On August 19, 2011, the ALJ issued a decision denying Plaintiff's claim. ( Id. at 2:7-9). Plaintiff then requested that the Appeals Council review the ALJ's decision. ( Id. at 2:10-11). This request was denied on December 19, 2012, making the ALJ's decision final. ( Id. at 2:12-13).

This action was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and District of Nevada Local Rule IB 1-4. In his R&R, Judge Foley recommended that this Court enter an order granting the Motion to Affirm, (ECF No. 22), and denying the Motion to Remand, (ECF No. 15).


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 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. R. IB 3-2(b).


This Court may set aside the Social Security Commissioner's denial of disability benefits only when the findings of the ALJ are based on legal error or are not supported by substantial evidence in the record as a whole. Social Security Act §§ 216(i), 223, (codified at 42 U.S.C. §§ 416(i), 423); Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation omitted). "Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld." Id.

Here, Judge Foley found that the ALJ's decision was supported by substantial evidence and that the ALJ properly assessed Plaintiff's credibility as well as the appropriate weight to be given to the opinions of Dr. Irina Lendel and Dr. William Ludlam, two of Plaintiff's treating physicians. (R&R 12:20-21:1, ECF No. 25).

Plaintiff objects to these findings, arguing (1) that the ALJ lacked sufficient evidentiary support to conclude that Plaintiff was not credible and (2) that the ALJ erred by not giving controlling weight to the opinions of Dr. Lendel and Dr. Ludlam. The Court will address each of these arguments in turn.

Plaintiff argues that the ALJ erroneously concluded that Plaintiff's testimony regarding the severity of her medical conditions was not credible. (Pl.'s Obj. at 5-7, ECF No. 26). However, the ALJ's findings were based on statements made by Plaintiff's husband, who reported that Plaintiff was able to cook, go to movies, visit casinos, care for three dogs, and shop for up to three hours at a time while he was traveling for work. (Admin. Rec. at 22, ECF No. 13). These activities were found to be inconsistent with the disabling level of pain claimed by Plaintiff. ( Id. ).

The Ninth Circuit has held that a plaintiff's daily activities may form the basis for an adverse credibility determination if those activities contradict the plaintiff's other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Pursuant to the deferential standard required by Burch, the Court finds sufficient evidentiary support for the ALJ's decision. 400 F.3d at 679. Plaintiff's claim is based on the assertion that she was entitled to SSD benefits due to debilitating back pain, headaches, dizziness while standing, and other various symptoms which prevented her from performing substantial gainful employment. See, e.g., (Admin. Rec. at 18). Plaintiff does not dispute that she shopped for up to three hours at a time, went to movies, visited casinos, or that she performed any of the other activities described by her ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.