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Cismaru v. Colvin

United States District Court, D. Nevada

October 23, 2017

DAVID CISMARU, Plaintiff,
v.
CAROYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

          ORDER ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE GEORGE FOLEY, JR.

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court for consideration is the Report and Recommendation of the Honorable George Foley Jr., United States Magistrate Judge, entered March 21, 2016. ECF No. 26. Defendants objected on April 7, 2016. ECF No. 27. Plaintiffs did not respond to Defendant's objection. For the reasons discussed below, the Report and Recommendation is adopted in full, and Defendant's cross-motion to affirm the Agency's decision (ECF. No. 22) is denied.

         II. BACKGROUND

         Neither party objected to the Magistrate Judge's summary of the background facts, and so the Court incorporates and adopts, without restating, that “background” section here. See Findings & Recommendation 1:21-15:9, ECF No. 26.

         III. LEGAL STANDARD

         A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local Rule IB 3-2(b).

         42 U.S.C. § 405(g) provides for judicial review of the Commissioner's disability determinations and authorizes district courts to enter “a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” In undertaking that review, an Administrative Law Judge's (ALJ's) “disability determination should be upheld unless it contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). “Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).

         It is incumbent upon the ALJ to develop the record so that the court does not need to speculate about findings. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). In this regard, an ALJ has an affirmative duty to supplement the claimant's medical records where the evidence regarding the existence of a severe impairment is ambiguous. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). And a medical impairment may be found to not be severe at step two of the sequential process “only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.” Id. at 686. Further, an inability to obtain medical treatment because of a lack of insurance can be a reasonable explanation for failing to obtain treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).

         Moreover, if the ALJ rejects the claimant's complaints regarding the severity of his pain or other symptoms, the ALJ must provide “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). This means the ALJ must state why the testimony is unpersuasive and must point to what specific testimony or evidence undermines the claimant's testimony. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Lester, 81 F.3d at 834. Absent affirmative evidence that the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be clear and convincing. Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan, 169 F.3d at 599). And the ALJ “may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (citation omitted). This is because the lack of an objective medical basis is just one factor in evaluating the credibility of a claimant's testimony and complaints. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). And because “pain testimony may establish greater limitations than can medical evidence alone.” Burch, 400 F.3d at 680 (citing SSR 96-7p (1996)).

         In regards to credibility determinations, the Ninth Circuit has upheld an ALJ's finding that a claimant's testimony is not credible when the ALJ cited specific instances in the record supporting that finding. See, e.g., Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). In Parra, the ALJ's credibility determination was upheld because the ALJ pointed to specific Veterans' Administration lab tests in the claimant's medical records that contradicted his subjective complaints. Id. Similarly in Batson v. Comm'r of Soc. Sec. Admin., the ALJ cited specific testimony from a doctor which contradicted the claimant's allegations that his ability to work was limited. Batson v. Comm'r of Soc Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2003). But the Ninth Circuit has also found broad rejections based on the record as a whole to be insufficient. See Robbins v. Social Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006). In Robbins, the ALJ supported his adverse credibility finding of claimant's testimony by stating the testimony was “not consistent with or supported by the overall medical evidence of record” and also cited conflicting testimony about claimant's alcoholism. Id. at 884. This was not enough; instead the ALJ was required to provide a “narrative discussion” and state specific evidence in the record supporting an adverse credibility finding. Id.

         “If the evidence can reasonably support either affirming or reversing a decision, [a reviewing court] may not substitute [its] judgment for that of the Commissioner.” Lingenfelter, 504 F.3d at 1035. Nevertheless, the court may not simply affirm by selecting a subset of the evidence supporting the ALJ's conclusion, nor can the Court affirm on a ground on which the ALJ did not rely. Garrison, 759 F.3d at 1009-10. Rather, the court must “review the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion, ” to determine whether that conclusion is supported by substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995).

         IV. DISCUSSION

         In his Report and Recommendation, Magistrate Judge George Foley Jr. found that “there was serious doubt whether Cismaru was, in fact, disabled within the meaning of the Social Security Act during the closed period.” Magistrate Judge George Foley Jr. came to this conclusion for two reasons: 1) the ALJ's statement that there was no objective evidence of Cismaru having a back impairment prior to the end of the closed period from April 25, 2010 to February 11, 2012 was contrary to the medical records; and 2) the ALJ's determination did not provide adequate reasons for rejecting the credibility of Cismaru's testimony about the severity of his pain and other symptoms. Defendant objected to both of these determinations. First, Defendant argued that the absence of objective evidence of back impairment in Cismaru's medical records during the closed period justified the ALJ's conclusion. Second, Defendant argued that the ALJ ...


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