United States District Court, D. Nevada
REPORT & RECOMMENDATION
Ferenbach, United States Magistrate Judge
matter involves Plaintiff Venona Richion's appeal from
the Commissioner's final decision denying Richion's
social security benefits. Before the Court is Richion's
Motion for Reversal and/or Remand. (ECF No. 14). For the
reasons stated below, the Court recommends denying
Fifth Amendment prohibits the government from depriving
persons of property without due process of law. U.S. Const.
amend. V. Social security claimants have a constitutionally
protected property interest in social security benefits.
Mathews v. Eldridge, 424 U.S. 319 (1976);
Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.
1990). Where, as here, the Commissioner of Social Security
renders a final decision denying a claimant's benefits,
the Social Security Act authorizes the District Court to
review the Commissioner's decision. See 42
U.S.C. § 405(g); see also 28 U.S.C. §
636(b) (permitting the District Court to refer matters to a
U.S. Magistrate Judge).
District Court's review is limited. Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[I]t
is usually better to minimize the opportunity for reviewing
courts to substitute their discretion for that of the
agency.” (quoting Treichler v. Comm'r of Soc.
Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014))). The
Court examines the Commissioner's decision to determine
whether (1) the Commissioner applied the correct legal
standards and (2) the decision is supported by
“substantial evidence.” Batson v. Comm'r
of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). Substantial evidence is defined as “more than a
mere scintilla” of evidence. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). This means
such relevant “evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197
(1938); Gutierrez v. Comm'r of Soc. Sec., 740
F.3d 519, 523 (9th Cir. 2014).
evidence supports more than one interpretation, the Court
must uphold the Commissioner's interpretation. (See
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
This means that the Commissioner's decision will be
upheld if it has any support in the record. See,
e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th
Cir. 1988) (stating that the court may not reweigh evidence,
try the case de novo, or overturn the
Commissioner's decision if the evidence preponderates
case, the Administrative Law Judge (“ALJ”)
followed the five-step sequential evaluation process in 20
C.F.R. § 404.1520. The ALJ concluded Richion did not
engage in substantial gainful activity during the relevant
timeframe. (ECF No. 13-1 at 31). The ALJ found Richion
suffered from a medically determinable severe impairment
consisting of depression/bi-polar/anxiety disorder, but the
impairment did not meet or equal any listed impairment under
20 C.F.R.. Part 404, Subpart P, Appendix 1. (Id. at
31-33). The ALJ concluded Richion retained the residual
functional capacity to perform a full range of work at all
exertional levels with limits on Richion's ability to
understand, remember, and carry out instructions; make
judgments; and interact with the public and co-workers.
(Id. at 34). A vocational expert testified that an
individual with these limitations could perform the work of a
laundry worker, janitor, or groundskeeper. (Id. at
39). The ALJ found that Richion was not under a disability as
defined in the Social Security Act. (Id. at 40).
challenges the ALJ's assessment on two grounds. Richion
argues the ALJ failed to adequately consider the opinion of
Dr. Cabaluna, who reported that Richion can only lift up to
30 pounds occasionally. (ECF No. 14 at 6-7). Richion also
asserts the ALJ improperly rejected Dr. Devera's opinion
that Richion's ability to interact with supervisors may
be limited without any explanation. (Id. at 10-12).
The Commissioner argues the ALJ properly interpreted all
relevant medical evidence in reaching his decision. (ECF No.
18 at 3-5).
Dr. Cabaluna's Opinion
alleged disability due to mental illness, short term memory
loss, headaches, issues related to diabetes and foot
pain.” (ECF No. 14 at 3). Dr. Cabaluna met with Richion
on July 13, 2013 to examine her physical status. (ECF No.
13-1 at 407-416). Dr. Cabaluna noted Richion “pulled
her right shoulder [six months ago] and has pain…. She
has not consulted any doctor for it.” (Id. at
407). Dr. Cabaluna opined that Richion could lift 25 pounds
frequently and 30 pounds occasionally, which falls slightly
below a “medium” vocational exertion level.
(Id. at 415). At the hearing before the ALJ,
Richion's attorney asked her what was wrong with her
shoulder, and Richion stated, “I fell with that one
with my hip and my shoulder, I think it's probably
arthritis. They didn't find anything in the x-ray.”
(Id. at 56). Richion did not say anything about how
her shoulder felt or was affecting her. The ALJ's
decision does not mention any limitation on Richion's
ability to lift objects. However, the ALJ notes that
Richion's records contain evidence of “shoulder
pain, ” but “the records do not suggest”
the condition would “do more than minimally limit the
claimant's ability to perform basic work
activities.” (Id. at 32).
interpreting the evidence and developing the record, the ALJ
does not need to “discuss every piece of
evidence.” Howard ex rel. Wolff v. Barnhart,
341 F.3d 1006, 1012 (9th Cir. 2003) (quoting Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998). “Rather,
[the ALJ] must explain why “significant probative
evidence has been rejected.” Vincent on Behalf of
Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)
(quoting Cotter v. Harris, 642 F.2d 700, 706 (3d
Cabaluna's specific finding regarding Richion's
ability to lift objects was not significant or probative.
Richion never asserted to the ALJ that she suffered a
disability due to an inability to lift heavy objects.
Richion's claim for benefits relied on “mental
illness, short term memory loss, headaches, issues related to
diabetes and foot pain.” (ECF No. 14 at 3). At the
hearing before the ALJ, while Richion mentioned she fell and
it somehow impacted her shoulder, Richion never testified
that her ability to lift objects was limited. Richion's
motion to remand is the first instance where Richion has
argued that her limitation in lifting renders her disabled.
(Id. at 7). In addition, even if this limitation
were probative, the ALJ did evaluate Richion's record of
shoulder pain, the condition most likely associated with her
inability to lift objects, and concluded Richion's
medical records showed it would do no more than minimally
affect Richion's ability to work.
Richion's ability to lift was not probative, the ALJ was
not required to discuss this specific finding by Dr.
Cabaluna. Therefore, Richion's ...