United States District Court, D. Nevada
R. Hicks United States District Judge
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”). The Commissioner
filed an objection to the Report and Recommendation (ECF No.
26), to which Curry responded (ECF No. 27).
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.
was injured on January 9, 2009, during the course of his
employment as a sheet-metal worker. Administrative Record
(“AR”) 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.
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.
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.
Reports and Recommendations
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).
Judicial review of the Commissioner's final
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.
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)).
“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)).
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.
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
Five-step disability evaluation
regulations require an ALJ to engage in the following
five-step process in order to determine whether a claimant is
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. § 416.920(a)(4)(iv). If not, ...