United States District Court, D. Nevada
ORDER ADOPTING REPORT & RECOMMENDATION OF
MAGISTRATE JUDGE GEORGE FOLEY, JR.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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.
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.
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).
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
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).
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
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.
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.
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 ...