United States District Court, D. Nevada
ORDER ADOPTING REPORT & RECOMMENDATION OF
MAGISTRATE JUDGE PEGGY A. LEEN
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court for consideration is the Report and Recommendation
of the Honorable Peggy A. Leen, United States Magistrate
Judge, entered November 30, 2016. (ECF No. 28). For the
reasons discussed below, the Report and Recommendation is
adopted in full.
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 1:19-2:27, ECF No. 28). The Court
adds the following procedural history.
Charles Asberger (“Plaintiff”) filed his
Complaint on October 8, 2014. (ECF No. 3). On January 29,
2015, Plaintiff filed a Motion to Remand, arguing that the
Administrative Law Judge (“ALJ”) failed to
properly evaluate the medical evidence of record in assessing
Plaintiff's residual functional capacity
(“RFC”), and requesting that the Court reverse
and award benefits, or remand to the agency. (ECF No. 17).
Defendant Carolyn W. Colvin (“Defendant”) filed a
Cross-Motion to Affirm the ALJ's decision on May 1, 2015.
(ECF No. 22). Defendant also filed a Response to the Motion
to Remand on May 1, 2015. (ECF No. 23). Plaintiff filed a
Reply to his Motion on May 21, 2015. (ECF No. 24). Judge Leen
issued a Report and Recommendation on November 30, 2016
recommending denial of Plaintiff's Motion and granting
Defendant's Motion. (ECF No. 28). On December 12, 2016,
Plaintiff filed an Objection to this recommendation. (ECF No.
29). Defendant filed a Response to the Objection on December
27, 2016. (ECF No. 30).
district 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). A party
may file specific written objections to the findings and
recommendations of a magistrate judge. Id. §
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).
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 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) (citation omitted). “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)) (quotation
the evidence can reasonably support either affirming or
reversing a decision, [a reviewing court] may not substitute
[its] judgment for that of the Commissioner.”
Lingenfelter, 504 F.3d 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 administrative record as a whole,
weighing both the evidence that supports and that which
detracts from the ALJ's conclusion, ” to determine
whether that conclusion is supported by substantial evidence.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
Social Security Act has established a five-step sequential
evaluation procedure for determining Social Security
disability claims. See 20 C.F.R. §
404.1520(a)(4); Garrison v. Colvin, 759 F.3d 995,
1010 (9th Cir. 2014). “The burden of proof is on the
claimant at steps one through four, but shifts to the
Commissioner at step five.” Garrison, 759 F.3d
at 1011. Here, the ALJ resolved Plaintiff's claim at step
four. (AR 19). At step four, the ALJ considers the assessment
of the claimant's RFC as well as the claimant's
capability of performing past relevant work.
Garrison, 759 F.3d at 1011. RFC is defined as the
most an individual is capable of doing in a work setting
despite the individual's impairments and related
symptoms, such as pain. 20 C.F.R. § 416.945(a)(1). If
the claimant is incapable of performing past relevant work,
the ALJ determines whether the claimant can make an
adjustment to substantial gainful work other than his past
relevant work in step five. 20 C.F.R. § 404.1520(g).
Craig Ellis issued a decision on February 6, 2013 finding
Plaintiff ineligible for disability under sections 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act. (AR
32-33). The ALJ determined that Plaintiff had the following
severe impairments: degenerative disc disease and arthritis
of the cervical, thoracic, and lumbar spine. (AR 17). The ALJ
found that Plaintiff also had a number of nonsevere
impairments. (AR 17-19). The ALJ concluded that Plaintiff had
the residual functional capacity to perform “light
work” as defined in 20 C.F.R. 404.1567(b) and
416.967(b), and could resume performance of past relevant
work as a casino gaming dealer. (AR 19; AR 30). Specifically,
the ALJ found that Plaintiff could do the following:
frequently lift and carry no more than ten pounds and
occasionally lift and carry twenty pounds; sit for six of
eight hours in a workday; stand and/or walk for six of eight
hours in a workday; frequently balance, kneel, and climb
stairs/ramps; occasionally stoop, crouch, and crawl; and
occasionally climb ladders, ropes, and scaffolds. (AR 19).
The ALJ further found that no assistive device is medically
necessary for ambulation, despite Plaintiff's use of his
mother's walker, and that Plaintiff is limited to
occasional overhead reaching with bilateral upper extremity
but had no other limitation in all other bilateral reaching.
(AR 19). The ALJ recommended he avoid concentrated exposure
to workplace hazards, extreme cold, fumes, dusts, gases,
odors, and poor ventilation. (AR 23). In so finding, the ALJ
considered all symptoms, and the extent to which those
symptoms could reasonably be accepted consistently with the
objective medical evidence, and other evidence, including
opinion evidence. (AR 19). The ALJ considered additional
medical records from the UMC Lied Clinic which Plaintiff
submitted after the hearing. (AR 23-25). The ALJ afforded
significant weight to the opinions of consultative examiner
Dr. Wensceslao A. Cabaluna, and state agency reviewing
physician Dr. Navdeep Dhaliwal with regard to Plaintiff's
physical health. (AR 25; AR 30).
parties agree that the ALJ fairly and accurately summarized
the evidence and testimony in the record, except as to the
arguments in their motions. Plaintiff claims that the UMC
Lied medical records support an RFC of no more than sedentary
exertion, and that the opinions of the consultative examiner
and state agency reviewing physician should not be considered
substantial evidence, in light of the UMC medical records.
Plaintiff argues these objective findings are evidence that
he lacks the capacity for the prolonged standing and walking
required of light work. Defendant contends that the opinions
of Dr. Cabaluna and Dr. Dhaliwal constituted substantial
evidence in support of the ALJ's RFC finding. Defendant
argues that Plaintiff's claim that he can perform no more
than sedentary exertional work is unsupported by any medical
opinion and is inconsistent with the record ...