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Warren v. Berryhill

United States District Court, D. Nevada

August 31, 2017

FRANK C. WARREN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


         This 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.


         On May 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.)

         On 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 Commissioner (“defendant”).

         Having 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.)


         The 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).

         This 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).

         Although 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).

         To 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.


         A. SSDI claims are evaluated under a five-step sequential process.

         The 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. § 404.1520(b).

         The 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.

         At step 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).

         If the 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).

         In 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 symptoms ...

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