United States District Court, D. Nevada
REPORT AND RECOMMENDATION
Hoffman, Jr. United States Magistrate Judge.
matter was referred to the undersigned magistrate judge for a
report of findings and recommendations under 28 U.S.C. §
636(b)(1)(B)-(C) and Local Rule IB 1-4. The case involves
review of an administrative action by the Commissioner of
Social Security (“Commissioner”) denying
Plaintiff Chandrawattie Ikhiede's
(“Plaintiff”) application for disability
insurance benefits under Title II and Title XVI of the Social
Security Act. The court has reviewed Plaintiff's motion
to remand (ECF No. 9), filed December 30, 2016, and the
Commissioner's response and cross-motion to affirm (ECF
No. 14), filed March 16, 2017.
February 7, 2013, Plaintiff applied for disability insurance
benefits and supplemental security income under Titles II and
XVI of the Act, alleging an onset date of December 7, 2012.
21. Plaintiff's claim was denied initially, and on
reconsideration. AR 152-53, 166-7. A hearing was held before
an Administrative Law Judge (“ALJ”) on February
23, 2015. AR 70-105. On May 14, 2015, the ALJ issued a
decision finding Plaintiff was not disabled. AR 21-31. The
ALJ's decision became the Commissioner's final
decision when the Appeals Council denied review. AR 1-7.
Plaintiff, on September 28, 2016, commenced this action for
judicial review under 42 U.S.C. §§ 405(g).
See ECF Nos. 1, 3.
The ALJ Decision
followed the five-step sequential evaluation process set
forth in 20 C.F.R. §§ 404.1520 and 416.920. AR
22-23. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from the alleged
onset date of December 7, 2012. AR 23. At step two, the ALJ
found that Plaintiff had medically determinable
“severe” impairments of early left shoulder
osteoarthritis, subsequent to surgeries in June 2008, and
then 6 years later in June 2014, and moderate degenerative
disc disease of the cervical spine without severe stenosis or
nerve root impingement. Id. At step three, the ALJ
found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a
listed impairment in 20 CFR Part 404, Subpart P, Appendix 1.
AR 26. At step four, the ALJ found that, through the date
last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except she can only perform
occasional pushing and pulling tasks with her left upper
extremity; only occasional climbing of ladders, ropes, or
scaffolding; and only frequent climbing of stairs or ramps,
balancing, crawling, and bilateral overhead reaching. AR 26.
The claimant should avoid concentrated exposure to extreme
cold, wetness, and vibration, and to hazards such as working
close to dangerous moving machinery or at unprotected
heights. Id. The ALJ also noted that Plaintiff is
unable to perform past relevant work. AR 29. At step five,
the ALJ found that Plaintiff is approaching advanced age, has
at least a high school education, and is able to communicate
in English. AR 30. Considering the Plaintiff's age,
education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. Id.
Accordingly, the ALJ concluded that Plaintiff was not under a
disability at any time from December 7, 2012, through the
date of the decision, on May 14, 2015. AR 31.
Standard of Review
decisions in social security disability benefits cases are
reviewed under 42 U.S.C. § 405(g). See Akopyan v.
Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section
405(g) states: “Any individual, after any final
decision of the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a
civil action . . . brought in the district court of the
United States for the judicial district in which the
plaintiff resides.” The court may enter “upon the
pleadings and transcripts of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing.” Id. The Ninth
Circuit reviews a decision affirming, modifying, or reversing
a decision of the Commissioner de novo. See
Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir.
Commissioner's findings of fact are conclusive if
supported by substantial evidence. See 42 U.S.C.
§ 405(g); Ukolov v. Barnhart, 420 F.3d 1002
(9th Cir. 2005). However, the Commissioner's findings may
be set aside if they are based on legal error or not
supported by substantial evidence. See Stout v.
Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002). The Ninth Circuit defines substantial
evidence as “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.”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995); see also Bayliss v. Barnhart, 427 F.3d 1211,
1214 n.1 (9th Cir. 2005). In determining whether the
Commissioner's findings are supported by substantial
evidence, the court “must review the administrative
record as a whole, weighing both the evidence that supports
and the evidence that detracts from the Commissioner's
conclusion.” Reddick v. Chater, 157 F.3d 715,
720 (9th Cir. 1998); see also Smolen v. Chater, 80
F.3d 1273, 1279 (9th Cir. 1996).
the substantial evidence test, findings must be upheld if
supported by inferences reasonably drawn from the record.
Batson, 359 F.3d at 1193. When the evidence will
support more than one rational interpretation, the court must
defer to the Commissioner's interpretation. See Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005);
Flaten v. Sec'y of Health and Human Serv., 44
F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue
before the court is not whether the Commissioner could
reasonably have reached a different conclusion, but whether
the final decision is supported by substantial evidence. It
is incumbent on the ALJ to make specific findings so that the
court does not speculate as to the basis of the findings when
determining if the Commissioner's decision is supported
by substantial evidence. Mere cursory findings of fact
without explicit statements as to what portions of the
evidence were accepted or rejected are not sufficient.
Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir.
1981). The ALJ's findings “should be as
comprehensive and analytical as feasible, and where
appropriate, should include a statement of subordinate
factual foundations on which the ultimate factual conclusions
are based.” Id.
Disability Evaluation Process
individual seeking disability benefits has the initial burden
of proving disability. Roberts v. Shalala, 66 F.3d
179, 182 (9th Cir 1995). To meet this burden, the individual
must demonstrate the “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). More
specifically, the individual must provide “specific
medical evidence” in support of her claim for
disability. 20 C.F.R. § 404.1514. If the individual
establishes an inability to perform her prior ...