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Hair v. Berryhill

United States District Court, D. Nevada

April 11, 2018

EDNA J. HAIR, Plaintiff,
v.
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

         This 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.

         Before 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 No. 15.)

         After a 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 Recommendation.

         I. BACKGROUND

         On 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 166-175.)

         Plaintiff 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, 238-39.)

         Plaintiff 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.

         The 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 non-disability determination.

         II. STANDARD OF REVIEW

         A. Substantial Evidence

         The 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 Cir. 2012)).

         To 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)).

         B. Five-Step Evaluation of Disability

         Under 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).

         The 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.

         The 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.

         In the 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), ...


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