United States District Court, D. Nevada
REPORT & RECOMMENDATION
FERENBACH UNITED STATES MAGISTRATE JUDGE
matter involves Plaintiff Gail Albanese's appeal from
Defendant Nancy A. Berryhill's (the
“Commissioner's”) final decision denying
Albanese disability insurance benefits. Before the Court are
Albanese's Motion for Summary Judgment (ECF No. 21), the
Commissioner's Cross-Motion to Affirm and Response to
Plaintiff's Motion for Reversal (ECF No. 22), and
Albanese's Replies (ECF Nos. 24, 25 and 26). Based on the
Court's review of the record in this case and the briefs
of the parties, the Court concludes that the decision of the
Commissioner should be reversed and the case remanded for the
reasons stated below.
is a 66-year-old female who applied for Social Security
Disability Insurance benefits on July 11, 2011, alleging
disability beginning March 1, 2007. See Admin. Rec.
at 288. Albanese claims that she became disabled due to
multiple sclerosis, neuropathy, fibromyalgia, arthritis,
hypertension, and depression. Id. at 100. Her claim
was denied initially and upon reconsideration. Id.
at 146, 151. In October 2012, Albanese appeared and testified
at a hearing in Las Vegas. Id. at 66. Shortly after
the hearing, the Administrative Law Judge (“ALJ”)
issued an unfavorable decision. Id. at 113. Albanese
appealed. The Appeals Council vacated the ALJ's decision
and remanded the case back to the ALJ. See Admin.
Rec. at 136. The ALJ held a second hearing in February 2015,
at which Albanese, Albanese's non-attorney
representative, and a vocational expert (Dr. Robin Generaux)
appeared and testified. Id. at 45. Albanese amended
the alleged onset of disability from March 1, 2007 to July 1,
2010 due to issues about documented substance abuse prior to
July 2010. Id. at 46-48. In May 2015, the ALJ issued
an unfavorable decision. Id. at 20. Albanese
appealed. The Appeals Council declined review in August 2015,
making the ALJ's decision final. The case is now before
the Court for review pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3).
raises the following five issues as grounds for reversal and
1. Whether the ALJ's finding that Albanese did not have a
medically determinable impairment of multiple sclerosis is
supported by substantial evidence?
2. Whether the ALJ's finding that Albanese did not have a
medically determinable impairment of fibromyalgia is
supported by substantial evidence?
3. Whether the ALJ's finding that Albanese did not have a
medically determinable mental impairment of depression is
supported by substantial evidence?
4. Whether the ALJ properly considered the combined effect of
5. Whether the ALJ used the Special Procedures pursuant to 20
C.F.R. § 404.1520a?
Standard of Review
security claimants have a constitutionally protected property
interest in social security benefits. See Mathews v.
Eldridge, 424 U.S. 319 (1976); see also Gonzalez v.
Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). The
Social Security Act authorizes the District Court to review
the Commissioner's final decision denying benefits.
See 42 U.S.C. § 405(g); see also 28
U.S.C. § 636(b) (permitting the District Court to refer
matters to a U.S. Magistrate Judge).
District Court's review of Social Security determinations
is limited by three principles. See Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“For
highly fact-intensive individualized determinations like a
claimant's entitlement to disability benefits, Congress
‘places a premium upon agency expertise, and, for the
sake of uniformity, it is usually better to minimize the
opportunity for reviewing courts to substitute their
discretion for that of the agency.'” (quoting
Treichler v. Comm'r of Soc. Sec. Admin., 775
F.3d 1090, 1098 (9th Cir. 2014))). First, courts generally
“leave it to the ALJ to determine credibility, resolve
conflicts in the testimony, and resolve ambiguities in the
courts will only disturb the Commissioner's decision to
deny benefits if the decision (1) is not supported by
substantial evidence or (2) is based on legal error. See
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). Substantial evidence is defined as
“more than a mere scintilla” of evidence. See
Richardson v. Perales, 402 U.S. 389, 401 (1971). Under
the “substantial evidence” standard, the
Commissioner's decision must be upheld if it is supported
by enough “evidence as a reasonable mind might accept
as adequate to support a conclusion.” See
Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)
(defining “a mere scintilla” of evidence). If the
evidence supports more than one interpretation, the court
must uphold the Commissioner's interpretation. See
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
This means that the Commissioner's decision will be
upheld if it has any support in the record. See,
e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir.
1988) (stating that the court may not reweigh evidence, try
the case de novo, or overturn the Commissioner's
decision if the evidence preponderates against it).
third principle is that “[e]ven when the ALJ commits
legal error, we uphold the decision where that error is
harmless, ” meaning that “it is inconsequential
to the ultimate nondisability determination, ” or that,
despite the legal error, “the agency's path may
reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.”
Brown-Hunter, 806 F.3d at 492 (quoting
Treichler, 775 F.3d at 1099). Ninth Circuit
precedent, however, has been cautious about when harmless
error should be found. See Marsh v. Colvin, 792 F.3d
1170, 1173 (9th Cir. 2015). Courts have a duty not to
substitute their own discretion for that of the agency as
“the decision on disability rests with the ALJ and the
Commissioner … in the first instance, not with a
district court.” Id. at 1173. So, although the
agency will not be faulted merely for explaining its decision
with “less than ideal clarity, ” courts still
require the agency to set forth the reasoning behind its
decisions in a way that allows for meaningful review. See
Brown-Hunter, 806 F.3d at 492. Courts can affirm the
agency's decision to deny benefits only on the grounds
invoked by the agency. Id.; Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). A clear
statement of the agency's reasoning is essential.
Circuit precedent prohibits a reviewing court from making
independent findings based on the evidence before the ALJ to
conclude that the ALJ's error was harmless. Id.
District Court review is limited to the reasons the ALJ
asserts. Id. If the ALJ fails to specify his reasons
for finding a claimant's testimony not credible, a
reviewing court will be unable to review those reasons
meaningfully without improperly “substitut[ing] [its]
conclusions for the ALJ's, or speculat[ing] as to the
grounds for the ALJ's conclusions.” Id.
(quoting Treichler, 775 F.3d at 1103). Because
courts cannot engage in such substitution or speculation,
such error will usually not be harmless.
The Sequential Evaluation
are “disabled” for purposes of receiving Social
Security benefits if they are unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or which has
lasted or is expected to last for a continuous period of at
least 12 months. See 42 U.S.C. § 423(d)(1)(A);
see also Drouin v. Sullivan, 966 F.2d 1255, 1257
(9th Cir. 1992).
Commissioner “has established a five-step sequential
evaluation process for determining whether a person is
disabled.” See Bowen v. Yuckert, 482 U.S. 137,
140 (1987). The five-step process is as follows. First, the
claimant must show that he or she is not currently engaged in
substantial gainful activity. See 20 C.F.R.
§§ 404.1520(b), 416.920(b). If the claimant is,
then disability benefits are denied. Id. Second, if
the claimant is not currently engaged in substantial gainful
activity, the claimant must prove he or she has a severe
medical impairment, or combination of impairments, that
“significantly limits his [or her] physical or mental
ability to do basic work activities.” See
§§ 404.1520(c), 416.920(c); see also
Yuckert, 482 U.S. at 141. The ability to do basic work
activities is defined as “abilities and aptitudes to do
most jobs.” Yuckert, 482 U.S. at 141.
the claimant must show that his or her impairments meet or
equal a listed impairment in the social security regulations
at 20 C.F.R. Part 404, Subpart P, App. 1, and meet the
duration requirement. See §
404.1520(a)(4)(iii). If the claimant makes this showing, he
or she is presumed disabled without considering age,
education, or work experience. See §§
a residual functional capacity (“RFC”) assessment
will be conducted to determine what the claimant's
physical and mental limitations are in a work setting.
See § 404.1520(e), 416.920(e). The RFC
assessment is a function-by-function examination of a
claimant's ability to perform the physical and mental
demands of work-related activities on a “regular and
continuing basis” despite limitations from impairments.
See SSR 96-8p, 1996 WL 374184 (July 2, 1996). The
standard for “regular and continuing basis” is
measured by an eight-hour-a-day, five-day-a-week work
schedule. Id. The RFC is used to determine
“the most [the claimant] can still do despite [the
claimant's] limitations.” 20 C.F.R. §
404.1545(a). The RFC tests a claimant's physical, mental,
and other abilities affected by the claimant's
impairments. See § 404.1545(b). All relevant
medical evidence from the record will be used to determine a
claimant's RFC, including evidence of impairments that
are not severe. See § 404.1545(a). The totality
of all medical and non-medical evidence relating to a
claimant's impairment(s) will be assessed to determine
the “total limiting effects” of both severe and
non-severe impairments. See § 404.1545(e).
the assessment has concluded, the results will be used to
determine what job exertion category the claimant can
perform. See 20 C.F.R. § 404.1567. There are
five job exertion categories: (1) sedentary, (2) light, (3)
medium, (4) heavy, and (5) very heavy. Id. The RFC
and subsequent job exertion category certification are then
used to determine if the claimant satisfies the final two
steps of the five-step evaluation process. See
fourth step of the process requires the claimant to prove
that his or her impairments prevent him or her from
performing the physical and mental demands of his or her past
relevant work. See 20 C.F.R. §§
404.1520(f), 416.920(f). The RFC will be used to determine if
the claimant can in fact perform their past relevant work,
based on what job exertion category that job is classified
under. See § 404.1545. A claimant will pass
step four only if their RFC limits their job exertion to a
category lower than the exertion level required to perform
their past relevant work. Id.
claimant satisfies his or her burden under the previous four
steps, the burden then shifts to the Commissioner at step
five to prove that the claimant is capable of performing some
other substantial gainful work that exists in significant
numbers in the national economy. See §
404.1520(g); see also Yuckert, 482 U.S. at 145. The
claimant's RFC, age, education, and past work experience,
are all factors considered to determine if a claimant is
capable of performing some other work in the national
economy. Id. If the Commissioner proves that a
claimant can perform some other suitable work, the claimant
is given a chance to rebut by showing he or she is, in fact,
unable to perform that work. Id.
The ALJ's 2015 Decision
followed the five-step sequential evaluation process set
forth at §§ 404.1520 and 416.920 and issued an
unfavorable decision against Albanese on May 18, 2015.
See Admin. Rec. at 20. At step one, the ALJ found
that Albanese had not engaged in substantial gainful activity
from her amended alleged onset date of July 2010 through her
date last insured of September 30, 2011. Id. at 25.
At step two, the ALJ found that Albanese had the following
severe medical impairment for Social Security purposes: a
history of neuropathy (§ 404.1520(c)). Id. The
ALJ found, however, that Albanese did not have the following
severe medically determinable impairments: multiple
sclerosis, fibromyalgia, osteoarthritis, hypertension,
hyperthyroidism, and psychiatric disorders. Id. at
three, the ALJ determined that Albanese did not have an
impairment, or combination of impairments that met or
medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, App. 1. Id. at 28. Continuing
the process at step three, the ALJ reviewed the evidence
within the record and found that from July 2010 through
September 30, 2011, Albanese demonstrated the RFC “to
perform light work … except she could occasionally
climb stairs and ramps and never climb ladders, ropes, and
scaffolds; she could occasionally balance, stop, kneel,
crouch, and crawl.” Id.
four, the ALJ, relying on the testimony of vocational expert
Dr. Robin Generaux, found that Albanese was able to perform
her past relevant work as a furniture sales person and food
service director. Id. at 29. Based on these
findings, the ALJ concluded that Albanese was not disabled
from July 2010 through September 30, 2011, and denied her
application for disability insurance benefits. Id.