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Albanese v. Berryhill

United States District Court, D. Nevada

June 8, 2017

GAIL ALBANESE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         Albanese 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).

         II. Disputed Issues

         Albanese raises the following five issues as grounds for reversal and remand:

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 Albanese's impairments?
5. Whether the ALJ used the Special Procedures pursuant to 20 C.F.R. § 404.1520a?

         III. Standard of Review

         Social 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).

         A 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 record.” Id.

         Second, 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).

         The 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.

         Ninth 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.

         IV. The Sequential Evaluation

         Persons 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).

         The 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.

         Third, 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 §§ 404.1520(d), 416.920(d).

         Otherwise, 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).

         Once 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 §§ 404.1545(a)(5)(i)-(ii).

         The 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.

         If the 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.

         V. The ALJ's 2015 Decision

         The ALJ 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 25-26.

         At step 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.

         At step 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.

         VI. ...


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