United States District Court, D. Nevada
EDNA J. HAIR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE
RE: ECF NOS. 12, 13
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Howard D.
McKibben, Senior United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR IB 1-4.
the court is Plaintiff's Motion for Reversal and/or
Remand. (ECF No. 12.) The Commissioner filed a Cross-Motion
to Affirm and Response to Plaintiff's Motion for
Reversal. (ECF Nos. 13, 14.) Plaintiff filed a reply. (ECF
thorough review, the court recommends that Plaintiff's
motion be granted; the Commissioner's cross-motion be
denied; the Commissioner's decision finding Plaintiff not
disabled be reversed, and the matter be remanded for further
proceedings for the reasons set forth in this Report and
September 12, 2013, Plaintiff completed an application for
supplemental security income (SSI) under Title XVI of the
Social Security Act, alleging disability beginning September
3, 2009. (Administrative Record (AR) 241-246.) The
application was denied initially and on reconsideration. (AR
requested a hearing before an administrative law judge (ALJ).
(AR 176-178.) ALJ Ryan Johannes held a hearing on December 8,
2015. (AR 46-73.) Plaintiff, who was represented by counsel,
appeared and testified on her own behalf at the hearing.
Testimony was also taken from a vocational expert (VE). After
the hearing, the ALJ sent interrogatories to the VE, and the
VE provided responses. (AR 357-360, 363-366.) On March 8,
2016, the ALJ issued a decision finding Plaintiff not
disabled. (AR 15-38.) Plaintiff requested review, and the
Appeals Council denied the request, making the ALJ's
decision the final decision of the Commissioner. (AR 1-6,
then commenced this action for judicial review pursuant to 42
U.S.C. § 405(g). Plaintiff argues: that the ALJ erred in
his step five determination because there was an apparent
conflict between the VE's testimony that Plaintiff could
perform jobs defined by the Dictionary of Occupational Titles
(DOT) as requiring frequent overhead reaching (lens gauger
(DOT 716.687-030) and table worker (DOT 739.687-182)), when
Plaintiff was limited to occasional reaching with respect to
the right upper extremity, and the ALJ failed to elicit a
reasonable explanation for the deviation.
Commissioner, on the other hand, argues that there was no
apparent conflict between the VE's testimony and the DOT
because it is not obvious from the DOT descriptions of the
two jobs that they would require frequent bilateral reaching.
The Commissioner also argues that Plaintiff waived the issue
that there is a discrepancy between the reaching abilities
and the DOT because she failed to raise it at the hearing or
to the Appeals Council. The Commissioner maintains that the
ALJ properly relied on the job information provided by the
VE, and that substantial evidence supports the ultimate
STANDARD OF REVIEW
court must affirm the ALJ's determination if it is based
on proper legal standards and the findings are supported by
substantial evidence in the record. Gutierrez v.
Comm'r Soc. Sec. Admin., 740 F.3d 519, 522 (9th Cir.
2014) (citing 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, 740 F.3d at 523-24
(quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th
determine whether substantial evidence exists, the court must
look at the record as a whole, considering both evidence that
supports and undermines the ALJ's decision.
Gutierrez, 740 F.3d at 524 (citing Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The court
"'may not affirm simply by isolating a specific
quantum of supporting evidence.'" Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). "'The ALJ is responsible for
determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities.'"
Id. (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). "If the evidence can
reasonably support either affirming or reversing, 'the
reviewing court may not substitute its judgment' for that
of the Commissioner." Gutierrez, 740 F.3d at
524 (quoting Reddick v. Chater, 157 F.3d 715, 720-21
(9th Cir. 1996)). That being said, "a decision supported
by substantial evidence will still be set aside if the ALJ
did not apply proper legal standards." Id.
(citing Bray v. Comm'r of Soc. Sec. Admin., 554
F.3d 1219, 1222 (9th Cir. 2009); Benton v. Barnhart,
331 F.3d 1030, 1035 (9th Cir. 2003)). In addition, the court
will "review only the reasons provided by the ALJ in the
disability determination and may not affirm the ALJ on a
ground upon which he did not rely." Garrison,
759 F.3d at 1010 (citing Connett v. Barnhart, 340
F.3d 871, 874 (9th Cir. 2003)).
Five-Step Evaluation of Disability
the Social Security Act, "disability" is the
inability to engage "in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. §
1382c(a)(3)(A). A claimant "shall be determined to be
under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he
applied for work." 42 U.S.C. § 1382c(a)(3)(b).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. 20 C.F.R.
§ 404.1520 and § 416.920; see also Bowen v.
Yuckert, 482 U.S. 137, 140-41 (1987). In the first step,
the Commissioner determines whether the claimant is engaged
in "substantial gainful activity"; if so, a finding
of nondisability is made and the claim is denied. 20 C.F.R.
§ 404.1520(a)(4)(i), (b); § 416.920(a)(4)(i);
Yuckert, 482 U.S. at 140. If the claimant is not
engaged in substantial gainful activity, the Commissioner
proceeds to step two.
second step requires the Commissioner to determine whether
the claimant's impairment or combination of impairments
are "severe." 20 C.F.R. § 404.1520(a)(4)(ii),
(c) and § 416.920(a)(4)(ii); Yuckert, 482 U.S.
at 140-41. An impairment is severe if it significantly limits
the claimant's physical or mental ability to do basic
work activities. Id.
third step, the Commissioner looks at a number of specific
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Listed Impairments) and determines whether the impairment
meets or is the equivalent of one of the Listed Impairments.
20 C.F.R. § 404.1520(a)(4)(iii), (d) and §
416.920(a)(4)(iii), (c). The Commissioner presumes the Listed
Impairments are severe enough to preclude any gainful
activity, regardless of age, education, or work experience.
20 C.F.R. § 404.1525(a). If the claimant's
impairment meets or equals one of the Listed Impairments, and
is of sufficient duration, the claimant is conclusively
presumed disabled. 20 C.F.R. § 404.1520(a)(4)(iii), (d),