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Payano v. Colvin

United States District Court, D. Nevada

October 23, 2017

AMADIS PAYANO, Plaintiff,
v.
CAROYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court for consideration is the Report and Recommendation of the Honorable C.W. Hoffman., United States Magistrate Judge, entered June 28, 2016. ECF No. 16. Plaintiff claimant objected on July 15, 2016. ECF No. 17. Defendant did not respond to Plaintiff's objection. For the reasons discussed below, the Report and Recommendation is adopted in part; Plaintiff's Motion to Remand and Defendant's Cross Motion to Affirm are granted in part and denied in part.

         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 Report & Recommendation 1:22-2:5, ECF No. 16. . .

         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)).

         “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.” Id. 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

         A. Residual Functional Capacity (“RFC”)

         In her objection, claimant Payano argues that the Court erred in finding that the ALJ's finding was supported by substantial evidence; specifically, Payano asserted error in failing to recognize the need for a scooter and service dog.

         1. Legal Standard

         A person claiming disability benefits has the burden of proving he is disabled. Drouin v. Sullivan, 966 F.3d 1255, 1257 (9th Cir. 1992). To establish he is disabled, that person must show “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). And that “he is not only unable to do his previous work but cannot…engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A).

         An ALJ evaluates a person's disability claim under a five-step sequential procedure: (1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant's alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled. (3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is not disabled. If not, proceed to step four. (4) Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. (5) Does the claimant's RFC, when considered with the claimant's age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 20 C.F.R. § 404.1520, 416.920. If a person establishes an inability to perform his or her work, the burden shifts to the Commissioner to show that the person can perform a significant number of other jobs that exist in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007).

         “If a claimant shows that he or she cannot return to his or her previous job, the burden of proof shifts to the Secretary to show that the claimant can do other kinds of work. Without other reliable evidence of a claimant's ability to perform specific jobs, the Secretary must use a vocational expert to meet that burden. Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant, including, for example, pain and an inability to lift certain weights. If the assumptions in the hypothetical are not supported by the record, the ...


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