United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, 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 Plaintiffs Motion for Reversal and/or Remand.
(ECF No. 11.) The Commissioner filed a Cross-Motion to Affirm
and Opposition to Plaintiffs motion. (ECF Nos. 12/13.)
Plaintiff filed a reply. (ECF No. 14.)
thorough review, the court recommends that Plaintiff's
motion be denied, and that the Commissioner's
cross-motion be granted.
completed an application for disability insurance benefits
(DIB) under Title II of the Social Security Act, alleging
disability beginning February 1, 2007. (Administrative Record
(AR) 83, 148-49.) The application was denied initially and on
reconsideration. (AR 99-104, 106-111.)
requested a hearing before an administrative law judge (ALJ).
(AR 113.) ALJ Sara Gilles held a hearing on January 27, 2015.
(AR 39-70.) 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
April 13, 2015, the ALJ issued a decision finding Plaintiff
not disabled. (AR 20-35.) Plaintiff requested review, and the
Appeals Council denied the request, making the ALJ's
decision the final decision of the Commissioner. (AR 1-4,
then commenced this action for judicial review pursuant to 42
U.S.C. § 405(g). Plaintiff argues: (1) the ALJ failed to
properly evaluate Plaintiffs service connected disability;
(2) the bookkeeping occupation identified by the VE has a
specific vocational preparation (SVP) of 4 under die
Dictionary of Occupational Titles (DOT), but the VE said that
the Department of Labor and Bureau of Labor Statistics (BLS)
characterized the occupation as unskilled without identifying
the specific publication or statistics she relied on to
render her testimony, and the VE's testimony was not
supported by published data; (3) Plaintiff was limited to
sedentary work and the mail clerk occupation identified by
die VE is characterized by the DOT as light work, and while
die VE indicated that the BLS characterized this occupation
as sedentary, she did not indicate what publication she
relied upon; (4) die VE characterized die office helper
occupation as sedentary, and while die DOT characterizes it
as light work, the ALJ failed to recognize this conflict.
STANDARD OF REVIEW
court must affirm the ALJ's determination if it is based
on proper legal standards and die findings are supported by
substantial evidence in die 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 dian a mere scintilla but less dian 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 whedier substantial evidence exists, the court must
look at die record as a whole, considering both evidence diat
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, 759F.3d 995, 1009 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9di
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)(H),
(c) and § 416.920(a)(4)(H); 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).