United States District Court, D. Nevada
ELLEN M. BRONSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Larry R.
Hicks, Senior United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR IB 1-4.
the court is Plaintiff's Motion for Reversal and Remand.
(ECF No. 13.) The Commissioner filed a Cross-Motion to Affirm
and Response to Plaintiff's Motion for Reversal and/or
Remand. (ECF Nos. 14, 15.) Plaintiff filed a response to the
cross-motion and reply in support of her motion. (ECF No.
thorough review, the court recommends that Plaintiff's
motion be granted in part; the Commissioner's
cross-motion be denied; and, that the action be remanded for
further proceedings consistent with this Report and
January 7 and 11, 2013, Plaintiff completed applications for
disability insurance benefits (DIB) under Title II of the
Social Security Act and for supplemental security income
(SSI) under Title XVI of the Social Security Act, alleging
disability beginning September 30, 2012. (Administrative
Record (AR) 202-212.) The applications were denied initially
and on reconsideration. (AR 119-121, 126-131.)
requested a hearing before an administrative law judge (ALJ).
(AR 133-34.) ALJ Eileen Burlison held a hearing on October
21, 2014. (AR 42-72.) Plaintiff, who was represented by
counsel, appeared and testified on her own behalf at the
hearing. Testimony was also taken from a vocational expert
(VE). On January 30, 2015, the ALJ issued a decision finding
Plaintiff not disabled. (AR 21-41.) Plaintiff requested
review, and the Appeals Council denied the request, making
the ALJ's decision the final decision of the
Commissioner. (AR 1-6.)
then commenced this action for judicial review pursuant to 42
U.S.C. § 405(g). Plaintiff argues: (1) the ALJ failed to
properly account for Plaintiff's limitations resulting
from her severe impairment of gastritis; (2) the ALJ did not
properly explain the great weight given to the non-examining
stage agency consultants over Plaintiff's treating
physician; and (3) the hypothetical posed to the VE did not
account for the limitations associated with Plaintiff's
STANDARD OF REVIEW
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.'" Gutierrez, 740 F.3d at 523-24
(quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th
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.
Gutierrez, 740 F.3d 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)). That being said, "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)).
Five-Step Evaluation of Disability
the Social Security Act, "disability" is the
inability to engage "in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. §
1382c(a)(3)(A). A claimant "shall be determined to be
under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he
applied for work." 42 U.S.C. § 1382c(a)(3)(b).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. 20 C.F.R.
§ 404.1520 and § 416.920; see also Bowen v.
Yuckert, 482 U.S. 137, 140-41 (1987). In the first step,
the Commissioner determines whether the claimant is engaged
in "substantial gainful activity"; if so, a finding
of nondisability is made and the claim is denied. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); § 416.920(a)(4)(i);
Yuckert, 482 U.S. at 140. If the claimant is not
engaged in substantial gainful activity, the Commissioner
proceeds to step two.
second step requires the Commissioner to determine whether
the claimant's impairment or combination of impairments
are "severe." 20 C.F.R. § 404.1520(a)(4)(ii),
(c) and § 416.920(a)(4)(ii); Yuckert, 482 U.S.
at 140-41. An impairment is severe if it significantly limits
the claimant's physical or mental ability to do basic
work activities. Id.
third step, the Commissioner looks at a number of specific
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Listed Impairments) and determines whether the impairment
meets or is the equivalent of one of the Listed Impairments.
20 C.F.R. § 404.1520(a)(4)(iii), (d) and §
416.920(a)(4)(iii), (c). The Commissioner presumes the Listed
Impairments are severe enough to preclude any gainful
activity, regardless of age, education, or work experience.
20 C.F.R. § 404.1525(a). If the claimant's
impairment meets or equals one of the Listed Impairments, and
is of sufficient duration, the claimant is conclusively
presumed disabled. 20 C.F.R. § 404.1520(a)(4)(iii), (d),
§ 416.920(d). If the claimant's impairment is
severe, but does not meet or equal one of the Listed
Impairments, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant can
still perform "past relevant work." 20 C.F.R.
§ 404.1520(a)(4)(iv), (e), (f) and §
416.920(a)(4)(iv), (e), (f). Past relevant work is that which
a claimant performed in the last fifteen years, which lasted
long enough for him or her to learn to do it, and was
substantial gainful activity. 20 C.F.R. § 404.1565(a)
and § 416.920(b)(1).
making this determination, the Commissioner assesses the
claimant's residual functional capacity (RFC) and the
physical and mental demands of the work previously performed.
See id.; 20 C.F.R.. § 404.1520(a)(4); see
also Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir.
2010). RFC is what the claimant can still do despite his or
her limitations. 20 C.F.R. § 1545 and § 416.945. In
determining RFC, the Commissioner must assess all evidence,
including the claimant's and others' descriptions of
limitation, and medical reports, to determine what capacity
the claimant has for work despite the impairments. 20 C.F.R.
§ 404.1545(a) and § 416.945(a)(3).
claimant can return to previous work if he or she can perform
the "actual functional demands and job duties of a
particular past relevant job" or "[t]he functional
demands and job duties of the [past] occupation as generally
required by employers throughout the national economy."
Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir.
2001) (internal quotation marks and citation omitted).
claimant can still do past relevant work, then he or she is
not disabled for purposes of the Act. 20 C.F.R. §
404.1520(f) and § 416.920(f); see also Berry,
62 F.3d at 131 ("Generally, a claimant who is physically
and mentally capable of performing past relevant work is not
disabled, whether or not he could actually obtain
however, the claimant cannot perform past relevant work, the
burden shifts to the Commissioner to establish at step five
that the claimant can perform work available in the national
economy. 20 C.F.R. § 404.1520(e) and § 416.290(e);
see also Yuckert, 482 U.S. at 141-42, 144. This
means "work which exists in significant numbers either
in the region where such individual lives or in several
regions of the country." Gutierrez, 740 F.3d at
528. If the claimant cannot do the work he or she did in the
past, the Commissioner must consider the claimant's RFC,
age, education, and past work experience to determine whether
the claimant can do other work. Yuckert, 482 U.S. at
141-42. The Commissioner may meet this burden either through
the testimony of a vocational expert or by reference to the
Grids. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th
grids are matrices of the four factors identified by
Congress-physical ability, age, education, and work
experience-and set forth rules that identify whether jobs
requiring specific combinations of these factors exist in
significant numbers in the national economy."
Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d
1068, 1071 (9th Cir. 2010) (internal quotation marks and
citation omitted). The Grids place jobs into categories by
their physical-exertional requirements, and there are three
separate tables, one for each category: sedentary work, light
work, and medium work. 20 C.F.R. Part 404, Subpart P, Appx.
2, § 200.00. The Grids take administrative notice of the
numbers of unskilled jobs that exist throughout the national
economy at the various functional levels. Id. Each
grid has various combinations of factors relevant to a
claimant's ability to find work, including the
claimant's age, education and work experience.
Id. For each combination of factors, the Grids
direct a finding of disabled or not disabled based on the
number of jobs in the national economy in that category.
step five the Commissioner establishes that the claimant can
do other work which exists in the national economy, then he
or she is not disabled. 20 C.F.R. § 404.1566.
Conversely, if the Commissioner determines the claimant
unable to adjust to any other work, the claimant will be
found disabled. 20 C.F.R. § 404.1520(g); see also
Lockwood, 616 F.3d at 1071; Valentine v. Comm'r
of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009).
ALJ's Findings in this Case
one, the ALJ found Plaintiff met the insured status
requirements through December 31, 2016, and had not engaged
in substantial gainful activity since the alleged onset date
of September 30, 2012. (AR 23.)
two, the ALJ concluded Plaintiff had the following severe
impairments: steroid responsive arthropathy, seronegative
rheumatoid arthritis, osteoarthritis, gastro-intestinal
reflux disease, and gastritis. (AR 23.)
three, the ALJ determined Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the Listed
Impairments. (AR 28.)
four, the ALJ assessed Plaintiff as having the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b) and
416.967(b), except she was limited to lifting/carrying ten
pounds frequently and twenty pounds occasionally; she could
sit, stand, and walk for six hours each in an eight-hour
workday; she could frequently balance, stoop, kneel, crouch,
and crawl; she could frequently climb stairs, ladders, ropes
and scaffolds; she should avoid hazards involving working at
heights or operating dangerous moving machinery; she would
need proximity to a restroom on occasion; she should not
perform work that requires persistent visual acuity; she
could understand and remember simple, detailed and complex
instructions and could relate to the public, supervisors and
coworkers. (AR 29.)
five, the ALJ relied on testimony from the VE to conclude
that Plaintiff could perform past relevant work as a retail
sales clerk. (AR 34-35.) The ALJ also determined that
Plaintiff could perform other jobs that existed in the
national economy in significant numbers including a storage
facility rental clerk and cashier. (AR 35-36.) Therefore, the
ALJ concluded that Plaintiff was not disabled from September
30, 2012 through the date of the decision. (AR 36.)
RFC & Gastritis Limitations 1. Summary
argues that the ALJ's RFC determination was incomplete
because it did not adequately account for her functional
limitations related to her gastritis. While the ALJ's RFC
acknowledged the need for additional bathroom breaks through
the requirement of proximity to a bathroom, Plaintiff
contends that it failed to fully consider the impact of her
symptoms to the extent she would be absent from her
workstation and off-task while in the restroom. (ECF No. 13-1
at 13.) In other words, Plaintiff asserts that by not
incorporating the time she would need for the additional
restroom breaks into the RFC, the ALJ failed to properly
determine the maximum RFC. (Id. at 14.) As a result,
Plaintiff contends the matter should be remanded for further
consideration of Plaintiff's RFC, including the impact of
these symptoms, pursuant to Social Security Ruling (SSR)
96-8p. (Id.) Plaintiff points out that the VE
testified that if the restroom breaks added up to more than
ten percent of time off-task, she would be precluded from
working any jobs in the national economy. In support of her
argument, Plaintiff relies on a 2012 District of Oregon case,
Allen v. Astrue, No. 6:11-cv-06322-KI, 2012 WL
4792412 (D. Or. Oct. 9, 2012), and a 2013 Western District of
Washington Case, Taylor v. Astrue, No.
C12-1069-MJP-MAT, 2013 WL 607436 (W.D. Wash. Jan. 28, 2013).
Commissioner argues that Plaintiff mistakenly claims the RFC
is incomplete because it does not address the time she needs
for restroom breaks. (ECF Nos. 14/15 at 5.) The Commissioner
asserts that Plaintiff cites no evidence in the record
showing she needs unscheduled breaks due to her gastritis,
much less breaks that would result in her being off task ten
percent or more of the workday. (Id.) Instead, the
Commissioner contends that the ALJ considered the entire
record and assessed an RFC that adequately accommodated
Plaintiff's gastritis by calling for proximity to the
bathroom. (Id ...