United States District Court, D. Nevada
ORDER REJECTING REPORT & RECOMMENDATION AND
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court for consideration is the Report and Recommendation
of the Honorable Nancy J. Koppe, United States Magistrate
Judge, entered April 7, 2016. (ECF No. 23). For the reasons
discussed below, the Court does not accept the Report and
Recommendation, grants in part Plaintiff's Motion to
Remand, and remands this matter for further proceedings
before the Administrative Law Judge (“ALJ”).
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 at 5:19 - 6:25, ECF No. 23). The
Court adds the following procedural history.
Gloria Martinez Lopez (“Plaintiff”) filed the
operative Amended Complaint on October 28, 2015. (ECF No. 4).
On January 25, 2016, Plaintiff filed a Motion to Remand,
arguing that the ALJ failed to articulate clear and
convincing reasons in assessing credibility with regard to
Plaintiff's residual functional capacity
(“RFC”), and requesting that the Court reverse
and award benefits, or remand to the agency. (ECF No. 15).
Defendant Carolyn W. Colvin (“the Commissioner”)
filed an Opposition and Cross-Motion to Affirm the ALJ's
decision on February 23, 2016. (ECF Nos. 19, 20). Plaintiff
filed a Reply to her Motion on March 7, 2016. (ECF No. 21).
Judge Koppe issued a Report and Recommendation on April 7,
2016 recommending denial of Plaintiff's Motion and
granting Defendant's Cross-Motion. (ECF No. 23). On April
22, 2016, Plaintiff filed an Objection to this
recommendation. (ECF No. 26). Defendant filed a Response to
the Objection on April 25, 2016. (ECF No. 28).
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 23-26). 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).
determining the credibility of a claimant's testimony,
the ALJ engages in a two-step analysis. Garrison,
759 F.3d at 1014-15. First, the claimant must have presented
objective medical evidence of an underlying impairment
“which could reasonably be expected to produce the pain
or other symptoms alleged.” Lingenfelter, 504
F.3d at 1035-36 (quoting Bunnell v. Sullivan, 947
F.2d 341, 344 (9th Cir. 1991)). The claimant does not need to
produce evidence of the symptoms alleged or their severity,
but she must show the impairments could reasonably cause some
degree of the symptoms. Garrison, 759 F.3d at 1014
(citing Smolen v. Chater, 80 F.3d 1273, 1282 (9th
Cir. 1996)). Second, the ALJ determines the credibility of
the claimant's testimony regarding the severity of her
symptoms. Id. at 1014-15. Unless affirmative
evidence supports a finding of malingering, the ALJ may only
reject the claimant's testimony by providing
“specific findings as to credibility and stating clear
and convincing reasons for each.” Id.
“[S]ubjective pain testimony cannot be rejected on the
sole ground that it is not fully corroborated by objective
medical evidence, ” however, objective medical
evidence, evidence of conservative treatment, and
contradictions found by considering the claimant's daily
activities are relevant factors in determining the severity
of the claimant's pain and its disabling effects.
Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir.
2001). “[M]any home activities are not easily
transferable to what may be the more grueling environment of
the workplace, where it might be impossible to periodically
rest or take medication.” Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989). Therefore, “claimants
should not be penalized for attempting to lead normal lives
in the face of their limitations.” Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citation
review of the record, the parties' briefs, and Judge
Koppe's Report and Recommendation, the Court concludes
the ALJ erred at step four of the disability evaluation
process by finding Plaintiff was capable of performing her
past relevant work as a cashier. The Court finds the
ALJ's decision was not supported by substantial evidence,
as the ALJ did not have sufficient evidence of
Plaintiff's post-surgery RFC, and did not properly
consider the post-surgery records that were introduced into
the record. Therefore, the Court rejects the Report and
Recommendation, remands this case to the Social Security
Agency to re-evaluate ...