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Conejo v. Berryhill

United States District Court, D. Nevada

November 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge Peggy A. Leen (ECF No. 27) (“R&R” or “Recommendation”) regarding Plaintiff Zeidy M. Ponce Conejo's Motion for Reversal and/or Remand (“Motion to Remand”) (ECF No. 18) and Defendant Acting Commissioner's Cross-Motion to Affirm (“Cross-Motion”) (ECF No. 21). The Court has reviewed Plaintiff's objection to the R&R (ECF No. 28). Defendant did not file a response. The Court has also reviewed the administrative record[1]filed by Defendant (ECF Nos. 15, 17-1).[2]

         For the following reasons, the Court finds good cause to accept and adopt the R&R in full.


         Plaintiff “protectively applied for a period of Title II disability and Disability Insurance Benefits” on December 30, 2010, “alleging that she had been disabled and unable to work since July 20, 2010.” (AR 10.) Plaintiff stated in her application that the following conditions limited her ability to work: cervical fusion, titanium disc in neck, pain in left arm, constant pain in spine, and depression. (AR 168.)

         Plaintiff's application was initially denied in a letter dated October 17, 2011 (AR 86), and again on reconsideration in a letter dated May 25, 2012 (AR 95). An administrative law judge (“ALJ”) held a hearing on May 9, 2013 (AR 40) and subsequently found that Plaintiff was not disabled in a decision dated June 12, 2013. (AR 7-33.) The Appeals Council denied review on August 5, 2014. (AR 1-4.)

         In denying Plaintiff's application, the ALJ applied the five-step disability evaluation process set forth in 20 C.F.R. § 404.1520. See Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (describing the five-step process). The ALJ found that Plaintiff passed the hurdles set at steps one and two of the five-step process because she was not engaging in substantial gainful activity and she suffered from a number of severe impairments, including degenerative disc disease of the cervical and lumbar spine, seizure disorder, and adjustment disorder with mixed features. (AR 12.) The ALJ also found, however, that Plaintiff was not automatically presumed disabled at step three because her condition did not meet or equal any of the impairments listed in 20 C.F.R., Pt. 4, Subpt. P, App. 1. (Id.) The ALJ's decision that Plaintiff was not disabled therefore turned on his assessment (in between steps three and four) of Plaintiff's residual functional capacity (“RFC”) and application of this RFC assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual functional capacity. . . . We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps.”).

         In assessing Plaintiff's RFC, the ALJ found that Plaintiff could perform sedentary work as defined in 20 C.F.R. § 404.1567(a): “She could lift and carry no more than five pounds, frequently, and ten pounds, occasionally. She could sit for six hours, cumulatively, in an eight-hour workday. She could stand and/or walk for two hours, cumulatively, in an eight-hour workday.” (AR 14-15.) While Plaintiff testified to additional limitations that would establish a lower RFC, the ALJ rejected this testimony as only “partially credible.” (AR 15.) The ALJ provided a host of reasons for discounting Plaintiff's credibility: her testimony was internally inconsistent (see AR 15, 20, 21); objective medical evidence did not corroborate the severity of her symptoms (AR 15, 22, 24); pending personal injury lawsuits (and potential awards of monetary damages) served as an incentive to avoid seeking work (AR 30); and her testimony was inconsistent with her conduct (AR 20, 22, 30), the notes of her treating physicians (AR 15, 23, 24), and her activities of daily living (AR 15-17).

         The Magistrate Judge found “that the ALJ's decision is supported by substantial evidence under 42 U.S.C. § 405(g).” (ECF No. 27 at 37.) Accordingly, the Magistrate Judge recommends that Plaintiff's Motion to Remand be denied and that the Commissioner's Cross-Motion be granted. (Id.)


         This 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)(C). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” Id.

         Congress has limited the scope of judicial review of the Commissioner's decisions to deny benefits under the Social Security Act. In reviewing findings of fact, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks and citations omitted). The court must consider the entire record as a whole to determine whether substantial evidence exists, and it must consider evidence that both supports and undermines the ALJ's decision. Id. at 523 (citation omitted). “If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In weighing the evidence and making findings, the Commissioner must also apply the proper legal standards. Id. (citations omitted). Courts “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         Additional rules govern credibility findings regarding claimants' pain and symptom testimony. “The ALJ must make two findings before the ALJ can find a claimant's pain or symptom testimony not credible.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing 42 U.S.C. § 423(d)(5)(A)). “First, the ALJ must determine whether the claimant has presented 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)). “Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide ‘specific, clear and convincing reasons for' rejecting the claimant's testimony regarding the severity of the claimant's symptoms.” Id. (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

         IV. ...

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