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Howard v. Berryhill

United States District Court, D. Nevada

October 30, 2017

WILHELMINA E. HOWARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Gloria M. Navarro, Chief Judge

         Pending 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[1] (“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).

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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.

         II. LEGAL STANDARD

         A party 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).

         III. DISCUSSION

         The 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.

         1. Credibility Determination

         In 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.

         In the 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).

         a) Specific Objections to the R&R

         In the 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 ...


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