United States District Court, D. Nevada
FRANK C. WARREN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and LR IB 1-4. Before the court is
plaintiff's motion for remand and/or reversal (ECF No.
15), defendant's cross-motion to affirm (ECF No. 21), and
plaintiff's reply (ECF No. 23). For the reasons set forth
herein, the court recommends that plaintiff's motion be
denied, and defendant's cross-motion be granted.
FACTUAL AND PROCEDURAL BACKGROUND
25, 2011, Frank C. Warren (“plaintiff”)
protectively filed for Social Security Disability Insurance
(“SSDI”) benefits under Title II of the Social
Security Act, alleging a disability onset date of January 1,
2011. (Administrative Record (“AR”) 16, 130,
371.) The Social Security Administration denied
plaintiff's application in the first instance on
September 1, 2011, and upon reconsideration on November 18,
2011. (Id. at 146-149, 151-153.)
August 30, 2012, plaintiff appeared at a hearing before
Administrative Law Judge (“ALJ”) Janice E. Shave
and received a partially favorable decision on September 10,
2012. (Id. at 129-137.) Plaintiff requested a review
by the Appeals Council and the matter was remanded for
further proceedings. (Id. at 140-143.) The ALJ held
two additional hearings on August 25, 2014 and May 12, 2015.
(Id. at 29-36, 74-123.) Jacklyn A. Benson-DeHaan, a
vocational expert (“VE”), appeared at the May 12,
2015 hearing. (Id. at 29-36.) After considering the
new testimonial, medical and vocational evidence, the ALJ
issued a written decision on June 17, 2015, finding that
plaintiff failed to establish disability through June 30,
2014, the date last insured. (Id. at 15-28.)
Plaintiff again appealed, and the Appeals Council denied
review on July 6, 2016. (Id. at 1-7.) Accordingly,
the ALJ's decision became the final decision of the
exhausted all administrative remedies, plaintiff filed a
complaint for judicial review on April 21, 2016. (ECF No. 1.)
In her motion for remand or reversal, plaintiff contends that
(1) plaintiff's due process rights were violated at the
remand hearings as the ALJ did not permit him to present
evidence for the time period after February 26, 2012, and (2)
the ALJ's credibility determination lacked the support of
substantial evidence. (ECF No. 15.)
STANDARD OF REVIEW
initial burden of proof to establish disability in a claim
for SSDI benefits rests upon the claimant. Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To satisfy
this burden, the claimant must demonstrate an
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months . . ..” 42
U.S.C. § 423(d)(1)(A).
court has jurisdiction to review an ALJ's decision to
deny a claim for benefits after the claimant has exhausted
all administrative remedies. See Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir.
2012). The court must affirm the ALJ's decision unless it
rests on legal error or is unsupported by substantial
evidence in the administrative record. Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); see
also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.”). The
substantial evidence standard is not onerous. It 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.”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)
(internal quotation omitted).
the ALJ need not discuss every piece of evidence in the
record, she cannot ignore or omit evidence that is
significant or probative. Hiler v. Astrue, 687 F.3d
1208, 1212 (9th Cir. 2012). The ALJ's discussion must
adequately explain the decision in light of such evidence.
“The ALJ, not the district court, is required to
provide specific reasons for rejecting [the evidence.]”
Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d
1050, 1054 (9th Cir. 2006) (specifically discussing rejection
of lay testimony). The district court's review is thus
constrained to the reasons asserted by the ALJ. Connett
v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
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; it “may
not affirm simply by isolating a specific quantum of
supporting evidence.” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal
quotation omitted). Where “the evidence is susceptible
of more than one rational interpretation, the decision of the
ALJ must be upheld.” Lewis v. Astrue, 498 F.3d
909, 911 (9th Cir. 2007) (internal quotation omitted). The
ALJ alone is responsible for determining credibility and
resolving ambiguities. Garrison, 759 F.3d at 1010.
SSDI claims are evaluated under a five-step sequential
Commissioner follows a five-step sequential process for
determining whether a claimant is “disabled” for
the purposes of SSDI. 20 C.F.R. § 404.1520(a)(4);
see also Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
Step one directs the ALJ to determine whether the claimant is
engaged in “substantial gainful activity.” 20
C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not
disabled and the Commissioner denies the claim. Id.
second step requires the ALJ to determine whether the
claimant's medically determinable impairment is
“severe.” Id. § 404.1520(a)(4)(ii).
“Severe” impairments are those that significantly
limit the claimant's physical or mental ability to do
basic work activities. Id. § 404.1520(c). The
Commissioner will deny the claim if the claimant lacks a
severe impairment or combination of impairments. Id.
three, the claimant's impairment is compared to those
listed in the Social Security Regulations at 20 C.F.R. Pt.
404, Subpart P, Appendix 1. Id. §
404.1520(a)(4)(iii). The list in Appendix 1 “define[s]
impairments that would prevent an adult, regardless of his
[or her] age, education, or work experience, from performing
any gainful activity, not just substantial gainful
activity.” Sullivan v. Zebley, 493 U.S. 521,
532 (1990) (internal quotation omitted) (emphasis in
original). Where the claimant's impairment is on the
list, or is equivalent to a listed impairment, and the
claimant also meets the corresponding durational requirement,
the claimant is deemed disabled. 20 C.F.R. §
404.1520(d). However, for an impairment to match a listing,
“it must meet all of the specified medical
criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.”
Zebley, 493 U.S. at 530 (emphasis in original).
Commissioner does not find disability at step three, review
of the claim proceeds to step four. There, the ALJ considers
whether the claimant can perform past relevant work despite
the severe impairment. 20 C.F.R. § 404.1520(a)(4)(iv).
If so, the claimant is not disabled. Id. §
404.1520(e). The ALJ will find that the claimant can return
to past relevant work if he or she can perform the
“actual functional demands and job duties of a
particular past relevant job” or the “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 omitted).
making the step four determination, the ALJ considers the
claimant's RFC and the physical and mental demands of the
work previously performed. 20 C.F.R. § 404.1520(f);
see also Berry v. Astrue, 622 F.3d 1228, 1231 (9th
Cir. 2010). The RFC is the most the claimant can do despite
his or her limitations. 20 C.F.R. § 404.1545(a)(1). To
determine the claimant's RFC, the ALJ must assess all the
evidence, including medical reports and descriptions by the
claimant and others of the claimant's relevant
limitations. See id. § 404.1545(a)(3). The ALJ
is not, however, required to accept as true every allegation
the claimant offers regarding his or her limitations. Orn
v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). The ALJ
must follow a two-prong inquiry where the claimant alleges
subjective pain or symptoms. Lingenfelter v. Astrue,
504 F.3d 1028, 1035-36 (9th Cir. 2007); see also SSR
96-7p, 61 Fed. Reg. 34483 (July 2, 1996). First, the ALJ
determines “whether the claimant has presented
objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other