United States District Court, D. Nevada
AUDREY R. PALMER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
case involves review of an administrative action by the
Commissioner of Social Security (“Commissioner”)
denying Plaintiff Audrey Palmer's
(“Plaintiff”) application for supplemental
security income. The Court has reviewed Plaintiff's
motion to remand (ECF No. 17), filed February 27, 2017, the
Commissioner's cross-motion to affirm (ECF No. 20), filed
March 30, 2017, and Plaintiff's Reply (ECF No. 21), filed
April 10, 2017.
January 15, 2013, Plaintiff applied for supplemental security
income alleging an onset date of December 5, 2012. AR
160-167. Plaintiff's claim was denied initially
on October 29, 2013, AR 101-105, and on reconsideration on
March 17, 2014. AR 113-117. A hearing was held before an
Administrative Law Judge (“ALJ”) on February 17,
2015. AR 42-66. On April 24, 2015, the ALJ issued an
unfavorable decision, indicating that Plaintiff was not
disabled. AR 23-36. On August 16, 2016, the ALJ's
decision became the Commissioner's final decision when
the Appeals Council denied review. AR 1-7. Plaintiff, on
October 3, 2016, commenced this action for judicial review
under 42 U.S.C. §§ 405(g). See ECF No. 1.
The ALJ Decision
followed the five-step sequential evaluation process set
forth in 20 C.F.R. §§ 404.1520 and 416.920. AR
23-25. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from the application
date of December 5, 2012. AR 25. At step two, the ALJ found
that Plaintiff had medically determinable
“severe” impairments: hepatitis C; obesity with
chronic low back pain; history of gout; history of asthma.
Also, the claimant has the following severe mental
impairments: major depressive disorder; and anxiety disorder.
Id. At step three, the ALJ found that Plaintiff did
not have an impairment or combination of impairments that met
or medically equaled a listed impairment in 20 CFR Part 404,
Subpart P, Appendix 1. Id. At step four, the ALJ
found that the claimant had the residual functional capacity
to perform light work as defined in 20 CFR 416.967(b) except:
inability to perform more than occasional postural movements;
avoid concentrated exposure to pulmonary irritants and
hazards in the work environment; and has a moderate
limitation for understanding, remembering, and carrying out
detailed instructions, but can perform simple repetitive
tasks that involve no more than occasional routine
interactions with the public or coworkers. AR 27. The ALJ
also noted that Plaintiff is not capable of performing past
relevant work. AR 34. The ALJ noted that the claimant was
born on March 11, 1963 and was 49 years old, which is defined
as a younger individual age 18-49, on the date the
application was filed. AR 35. The claimant subsequently
changed age category to closely approaching advanced age.
Id. She noted that claimant has at least a high
school education and is able to communicate in English.
Id. The ALJ noted that transferability of job skills
is not material to the determination of disability because
using the Medical-Vocational Rules as a framework support a
finding that the claimant is “not disabled, ”
whether or not the claimant has transferable job skills.
Id. At step five, the ALJ determined that
considering claimant's age, education, work experience,
and residual functional capacity, there are jobs that exist
in significant numbers in the national economy that the
claimant can perform. AR 35. Accordingly, the ALJ concluded
that Plaintiff was not under a disability since December 5,
2012, the date of the application. AR 36.
decisions in social security disability benefits cases are
reviewed under 42 U.S.C. § 405(g). See Akopyan v.
Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section
405(g) states: “Any individual, after any final
decision of the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a
civil action . . . brought in the district court of the
United States for the judicial district in which the
plaintiff resides.” The court may enter “upon the
pleadings and transcripts of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing.” Id. The Ninth
Circuit reviews a decision affirming, modifying, or reversing
a decision of the Commissioner de novo. See Batson v.
Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004).
Commissioner's findings of fact are conclusive if
supported by substantial evidence. See 42 U.S.C.
§ 405(g); Ukolov v. Barnhart, 420 F.3d 1002
(9th Cir. 2005). However, the Commissioner's findings may
be set aside if they are based on legal error or not
supported by substantial evidence. See Stout v.
Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002). The Ninth Circuit defines substantial
evidence as “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.”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995); see also Bayliss v. Barnhart, 427 F.3d 1211,
1214 n.1 (9th Cir. 2005). In determining whether the
Commissioner's findings are supported by substantial
evidence, the court “must review the administrative
record as a whole, weighing both the evidence that supports
and the evidence that detracts from the Commissioner's
conclusion.” Reddick v. Chater, 157 F.3d 715,
720 (9th Cir. 1998); see also Smolen v. Chater, 80
F.3d 1273, 1279 (9th Cir. 1996).
the substantial evidence test, findings must be upheld if
supported by inferences reasonably drawn from the record.
Batson, 359 F.3d at 1193. When the evidence will
support more than one rational interpretation, the court must
defer to the Commissioner's interpretation. See Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005);
Flaten v. Sec'y of Health and Human Serv., 44
F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue
before the court is not whether the Commissioner could
reasonably have reached a different conclusion, but whether
the final decision is supported by substantial evidence. It
is incumbent on the ALJ to make specific findings so that the
court does not speculate as to the basis of the findings when
determining if the Commissioner's decision is supported
by substantial evidence. Mere cursory findings of fact
without explicit statements as to what portions of the
evidence were accepted or rejected are not sufficient.
Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir.
1981). The ALJ's findings “should be as
comprehensive and analytical as feasible, and where
appropriate, should include a statement of subordinate
factual foundations on which the ultimate factual conclusions
are based.” Id.
Disability Evaluation Process
individual seeking disability benefits has the initial burden
of proving disability. Roberts v. Shalala, 66 F.3d
179, 182 (9th Cir 1995). To meet this burden, the individual
must demonstrate the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected . . . to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). More
specifically, the individual must provide “specific
medical evidence” in support of her claim for
disability. 20 C.F.R. § 404.1514. If the individual
establishes an inability to perform her prior work, then the
burden shifts to the Commissioner to show that the individual
can perform other substantial gainful work that exists in the
national economy. Batson, 157 F.3d at 721.
follows a five-step sequential evaluation process in
determining whether an individual is disabled. See
20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140 (1987). If at any step the ALJ determines that
he can make a finding of disability or nondisability, a
determination will be made and no further evaluation is
required. See 20 C.F.R. § 404.1520(a)(4);
Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one
requires the ALJ to determine whether the individual is
engaged in substantial gainful activity (“SGA”).
20 C.F.R. § 404.1520(b). SGA is defined as work activity
that is both substantial and gainful; it involves doing
significant physical or mental activities usually for pay or
profit. Id. § 404.1572(a)-(b). If the
individual is engaged in SGA, then a finding of not disabled
is made. If the individual is not engaged in SGA, then the
analysis proceeds to the step two.
two addresses whether the individual has a medically
determinable impairment that is severe or a combination of
impairments that significantly limits her from performing
basic work activities. Id. § 404.1520(c). An
impairment or combination of impairments is not severe when
medical and other evidence establishes only a slight
abnormality or a combination of slight abnormalities that
would have no more than a minimal effect on the
individual's ability to work. Id. §
404.1521; see also Social Security Rulings
(“SSRs”) 85-28, 96-3p, and 96-4p. If the individual
does not have a severe medically determinable impairment or
combination of ...