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Curry v. Berryhill

United States District Court, D. Nevada

April 17, 2017

JOHN CURRY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.


          Larry R. Hicks United States District Judge

         Before the court is the Report and Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 23), recommending granting plaintiff John Curry's motion for reversal and/or remand (ECF No. 12) and denying the cross-motion to affirm (ECF No. 18) submitted by defendant, the acting Commissioner of Social Security (“the Commissioner”).[1] The Commissioner filed an objection to the Report and Recommendation (ECF No. 26), to which Curry responded (ECF No. 27).

         The court will overrule in part and sustain in part the objections to the Report and Recommendation, which found that, based on Dr. J Antonio Aldrete's diagnosis, Curry meets Listing 1.04(B) and is therefore disabled and that this case should be remanded for benefits. The court finds that the Administrative Law Judge (“ALJ”) erred by not discussing Dr. Aldrete's diagnosis of nerve-root compression and arachnoiditis and by summarily according his opinion “little weight” despite the fact that he is an arachnoiditis specialist. But because there are conflicting diagnoses present in the record and unresolved issues, remanding for an award of benefits is improper and the case will instead be remanded for further proceedings. Finally, the court has reviewed Curry's two other bases for remand, which were not addressed in the Report and Recommendation, and finds that only the issue of the Vocational Expert's testimony also merits remand.

         I. Background

         Curry was injured on January 9, 2009, during the course of his employment as a sheet-metal worker. Administrative Record (“AR”)[2] at 48, 309. While mounting a forklift, he “bumped” his head, causing him to fall off the forklift, strike his head, and lose consciousness. Id. Curry has not been employed since that accident. AR at 48. He claims that, as a result of the accident, he suffers from constant, severe pain that prevents him from sitting or standing for more than twenty minutes at a time and impairs his ability to walk and his concentration. See AR at 53-57.

         On March 8, 2012, Curry filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, alleging disability beginning on January 9, 2009. AR at 186-89. The application was denied initially and on reconsideration. AR 114-19, 121-26. Plaintiff requested review before an ALJ. AR at 128-30. On July 9, 2014, Plaintiff appeared, represented by counsel, and testified on his own behalf before ALJ Eileen Burlison. AR at 43-69. Testimony was also taken from a vocational expert (“VE”). AR at 63-68. On August 14, 2014, the ALJ issued a decision finding Plaintiff not disabled. AR at 21-36. Plaintiff requested review, and the Appeals Council denied the request, making the ALJ's decision the final decision of the Commissioner. AR at 1-6, 16-17.

         Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). The action was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)B and Local Rule 1B 1-4 of the Rules of Practice of the United States District Court for the District of Nevada.

         II. Legal standards

         A. Reports and Recommendations

         This court conducts a de novo review “of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1).

         B. Judicial review of the Commissioner's final decision

         The court must affirm the ALJ's determination if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Gutierrez v. Comm'r Soc. Sec. Admin., 740 F.3d 519, 522 (9th Cir. 2014) (citing 42 U.S.C. § 405(g)). “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.'” Id. at 523-24 (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)).

         To determine whether substantial evidence exists, the court must look at the record as a whole, considering both evidence that supports and undermines the ALJ's decision. Id. at 524 (citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The court “may not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment' for that of the Commissioner.” Gutierrez, 740 F.3d at 524 (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         Nonetheless, “a decision supported by substantial evidence will still be set aside if the ALJ did not apply proper legal standards.” Id. (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009); Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). In addition, the court will “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).

         III. Discussion

         Curry argues that there are three separate reasons this case should be remanded: (1) the ALJ erred in finding that he did not meet Listing 1.04 for Disorders of the Spine; (2) the ALJ failed to resolve the conflict between the VE's testimony and the Dictionary of Occupational Titles and its companion publications concerning the sit-stand option; and (3) the ALJ failed to include limitations based on Plaintiff's post-concussion headaches in the RFC, and as such failed to include the required function-by-function assessment. ECF No. 12.

         The Report and Recommendation found that Curry meets Listing 1.04 and that his case should be remanded for benefits. ECF No. 23 at 12. Therefore, the Report and Recommendation did not address Curry's remaining arguments. Id. Because this court finds that the case must be remanded for further proceedings, it will also address these other arguments. But in order to place these issues in context, the court will first describe the five-step evaluation process for disability.

         A. Five-step disability evaluation

         Federal regulations require an ALJ to engage in the following five-step process in order to determine whether a claimant is disabled:

First, the ALJ must determine: (1) whether the claimant did not perform substantial gainful activity during the period of claimed disability, [20 C.F.R.] § 416.920(a)(4)(i); (2) whether the claimant had an impairment, or a combination of impairments that is “severe, ” id. § 416.920(a)(4)(ii), meaning that it significantly limits the claimant's “physical or mental ability to do basic work activities, ” id. § 416.920(c); and (3) whether any severe impairment meets or equals the severity of one of the impairments listed in an appendix to the regulations, as well as meeting the duration requirement, id. § 416.920(d)-(e); 20 C.F.R. pt. 404, subpt. P, App. 1. If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed in the appendix, the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC) based on all the relevant evidence in the record, including impairments not classified as “severe.” Id. § 416.920(a)(4)(iv); id. § 416.920(e); id. § 416.945(a). The RFC is defined as “the most” the claimant can do, despite any limitations. Id. § 416.945(a). After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work. Id. ยง 416.920(a)(4)(iv). If not, ...

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