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Yager v. Berryhill

United States District Court, D. Nevada

August 15, 2017

ROBIN ROSE PETERSON YAGER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         This matter involves Plaintiff Robin Rose Peterson Yager's appeal from Defendant Nancy A. Berryhill's final decision denying Yager social security benefits. Before the Court is Yager's Motion to Modify Reverse or Remand (ECF No. 14). The Commissioner filed a Response (ECF No. 19); Yager did not file a Reply. Also before the Court is the Commissioner's unopposed Cross-motion for Affirmance (ECF No. 18). For the reasons stated below, the Court recommends denying Yager's Motion and granting the Commissioner's Motion.

         I. Standard of Review

         The Fifth Amendment prohibits the Government from depriving persons of property without due process of law. (See U.S. Const. amend. V.). 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)). Where, as here, the Commissioner of Social Security renders a final decision denying a claimant's benefits, the Social Security Act authorizes the District Court to review the Commissioner's decision. (See 42 U.S.C. § 405(g); see also 28 U.S.C. § 636(c); Fed.R.Civ.P. 73). The District Court's review is limited. (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)))).

         The Court examines the Commissioner's decision to determine whether (1) the Commissioner applied the correct legal standards and (2) the decision is supported by “substantial evidence.” (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); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). This means such relevant “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); see also Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) (“The court must consider the record as a whole and weigh ‘both the evidence that supports and the evidence that detracts from the ALJ's' factual conclusions.” (quoting Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)))).

         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); see also Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1988) (“we may not reweigh evidence, try the case de novo, or overturn the Commissioner's decision if the evidence preponderates against it.”) (quotation marks and citation omitted)). In weighing the evidence and making findings, the ALJ must apply the proper legal standards. (See Gutierrez, 740 F.3d at 523 (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)).

         Even when the ALJ commits legal error, courts must “uphold the decision where that error is harmless.” (See Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 F.3d at 1099); see also Molina, 674 F.3d at 1115). An error is harmless if the error is “inconsequential to the ultimate nondisability determination.” (Stout v. Commissioner of Social Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)). “[A] reviewing court cannot consider [an] error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” (Id.).

         Ninth Circuit precedent does “not quantify the degree of certainty needed to conclude that an ALJ's error was harmless.” (See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015)). “[W]here the magnitude of an ALJ error is more significant, then the degree of certainty of harmlessness must also be heightened before an error can be determined to be harmless.” (Id.). “In other words, the more serious the ALJ's error, the more difficult it should be to show the error was harmless.” (Id.).

         II. Discussion

         A. Waiver

         Yager's Motion to Modify Reverse or Remand does not provide an adequate basis for the Court to assess the issues because the Motion neither articulates its arguments with specificity, nor supports its arguments with citations to social security regulations or case law. The Ninth Circuit “has repeatedly admonished that [it] cannot ‘manufacture arguments for an appellant.' ” (See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994))). Rather, the Court will only “review … issues … argued specifically and distinctly.” (Id.). This is also true for this Court. Therefore, when a claim is not argued and explained, the argument is waived. (See Id. at 929-30 (holding that party's argument was waived where the party offered “little if any analysis to assist the court in evaluating its legal challenge”); see also Hibbs v. Dep't of Human Res., 273 F.3d 844, 873 n. 34 (9th Cir. 2001) (finding an allegation of error was “too undeveloped to be capable of assessment”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“[j]udges are not like pigs, hunting for truffles buried in briefs.”)).

         In the Motion to Modify Reverse or Remand, Yager makes several unsupported and general arguments. (See Indep. Towers of Wash., 350 F.3d at 929 (9th Cir. 2003)). For example, Yager's Motion asserts that the “ALJ [f]ailed to afford proper weight to treating doctor's opinion” and that the “doctor and or mental health professional who regularly treated me and completed my Medical Source Statements should have been included in my Residual Functional Capacity form which indicate that I have substantial limitations ….” (See ECF No. 14 at 1, 3). It is not clear which opinion evidence Yager is referring to. The Court assumes Yager is referring to the opinion of Theodore Paisley, M.D. (See ECF No. 7 at 19 (“Theodore S. Paisley, M.D., a treating physician ….”) (emphasis added)). Yager does not, however, provide any analysis or support for her argument, nor does she address the ALJ's justifications for assigning Dr. Paisley's opinion little weight.[1]Yager does not, at bottom, explain why she thinks the ALJ failed to afford proper weight to the treating doctor's opinion. Yager's brief and unsupported argument offers “little if any analysis to assist the court in evaluating [her] legal challenge.” (See Indep. Towers of Wash., 350 F.3d 925, 929-30). Yager is a pro se plaintiff, but this Court cannot manufacture arguments for her.

         Yager's Motion also argues that the ALJ's RFC assessment “ignored limitations and symptoms that are in [her] medical file and said that [she] can do more than medical evidence indicates [she] can do.” (See ECF No. 14 at 2; but see ECF No. 7 at 18 (“In making this [RFC] finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence ….”)). Yager then proceeds to describe several different “diagnoses” from the administrative record that she argues the ALJ ignored. (Id. at 2-3). The Commissioner argues that “most of what [Yager] alleges as ‘diagnoses' are not actually medical diagnoses, but instead the physician's observations of [Yager] on physical examinations.” (See ECF No. 18 at 4). The Court agrees, and notes that Yager did not file a Reply disputing this.

         In making a determination of disability, the ALJ must develop the record and interpret the medical evidence. (See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996)). In interpreting the evidence and developing the record, however, the ALJ does not need to “discuss every piece of evidence.” (See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998))). That is, the ALJ need not discuss evidence that is neither significant nor probative. (Id.). Although Yager's Motion points to evidence that she contends supports her allegations, Yager does not explain how the existence of such evidence undermines the ALJ's findings. Yager asserts that the ALJ ignored her limitations and symptoms and then lists bits and pieces from the medical record, but provides no analysis or discussion as to how this supports her assertion that the ALJ's RFC assessment was not supported by substantial evidence. Yager's argument is too undeveloped to be capable of assessment. The role of this Court is not to second guess the ...


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