United States District Court, D. Nevada
WILHELMINA E. HOWARD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
M. Navarro, Chief Judge
before the Court for consideration is a Motion to Remand,
(ECF No. 16), filed by Plaintiff Wilhelmina E. Howard
(“Plaintiff”) and the Cross-Motion to Affirm,
(ECF No. 17), filed by Defendant Nancy A.
Berryhill (“Defendant” or “the
Commissioner”). These motions were referred to the
Honorable George Foley, United States Magistrate Judge, for a
report of findings and recommendations pursuant to 28 U.S.C.
§§ 636(b)(1)(B) and (C). In the Report and
Recommendation (“R&R”), (ECF No. 21), Judge
Foley recommended that Plaintiff's Motion to Remand be
granted. The Commissioner filed an Objection, (ECF No. 24),
and Plaintiff filed a Response, (ECF No. 25).
brings this action against Defendant in her capacity as the
Commissioner of the Social Security Administration, pursuant
the Social Security Act, 42 U.S.C. § 405(g). (Compl.,
ECF No. 1). Plaintiff seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration denying her claims for social security
disability benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-403. (Id. ¶ 9).
applied for disability insurance benefits on November 18,
2010, which were denied initially, upon reconsideration, and
after a hearing before an Administrative Law Judge
(“ALJ”) on November 28, 2012. (Mot. for Remand
3:7-10, ECF No. 16). Plaintiff timely requested Appeals
Council review of the ALJ's decision, which was denied on
February 14, 2014. (Id. 3:13-15). Plaintiff then
filed his Complaint and the instant Motion in this Court.
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. Local R. IB 3-2. Upon the filing of such objections,
the Court must make a de novo determination of those
portions of the Report to which objections are made.
Id. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local
R. IB 3-2(b).
Commissioner challenges Judge Foley's finding that the
ALJ failed to provide clear and convincing reasons for
rejecting Plaintiff's credibility. The Commissioner also
challenges the finding that the ALJ failed to provide germane
reasons for rejecting the testimony of Plaintiff's
friends. Lastly, the Commissioner challenges the finding that
the ALJ failed to provide legitimate reasons, supported by
substantial evidence in the record, to reject Plaintiff's
treating physician's assessment on Plaintiff's
functional capacity. The Court addresses the
Commissioner's objections in turn.
assessing the credibility of a claimant's testimony
regarding subjective pain or the intensity of symptoms, the
ALJ engages in a two-step analysis. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the
ALJ must determine whether there is “objective medical
evidence of an underlying impairment which could reasonably
be expected to produce the pain or other symptoms
alleged.” Id. (quoting Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). If the
claimant has presented such evidence, and there is no
evidence of malingering, then the ALJ must give
“specific, clear and convincing reasons” in order
to reject the claimant's testimony about the severity of
the symptoms. Id. (quoting Lingenfelter,
504 F.3d at 1036). In this case, the ALJ found that
Plaintiff's “medically determinable impairment
could reasonably be expected to produce some symptoms.”
(A.R. at 25, ECF No. 15). The question, therefore, turns on
whether the ALJ satisfied the second prong of the analysis.
underlying proceeding, the ALJ found that the objective
medical evidence did not corroborate Plaintiff's
allegations about the nature and severity of her symptoms.
Specifically, the ALJ noted that “there [were] no
clinical findings of significant sensory/motor deficits,
diminished motion in multiple joints, disuse atrophy,
abnormalities of gait, or other physical abnormalities
consistent with the extreme allegations of
[Plaintiff].” (A.R. at 25). An ALJ is permitted to look
at inconsistencies between a claimant's subjective
representations and the objective medical evidence; however,
such inconsistencies cannot be the sole ground for
discrediting a claimant. See Smolen v. Chater, 80
F.3d 1273, 1279 (9th Cir. 1996); Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Here,
Judge Foley concluded that “[i]n view of the record as
a whole, the ALJ failed to provide clear and convincing
reasons to reject the credibility of Plaintiff's
statements and testimony regarding the severity of her
symptoms.” (R&R 23:25-26).
Specific Objections to the R&R
R&R, Judge Foley found that the ALJ erred by discrediting
Plaintiff for discontinuing her physical therapy without
considering her reasoning. (R&R 22:17-23). The
Commissioner argues that Judge Foley missed the
“underlying premise” of the ALJ's analysis,
which is that conservative treatment lessened Plaintiff's
symptoms. (Obj. 6:9-13, ECF No. 24). The Court disagrees. The
ALJ specifically found that “despite complaints of
disabling symptoms, which significantly hindered her
functional abilities, the claimant quit physical
therapy.” (A.R. at 26). According to Plaintiff,
however, she stopped going to physical therapy because the
hour long drive home was uncomfortable, and she felt that the
benefits did not outweigh the additional pain of the drive.
(Id. at 45). By ...