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Lopez v. Colvin

United States District Court, D. Nevada

July 2, 2018

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




         Before 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”).


         Neither 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.

         Plaintiff 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).


         A 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).

         42 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 marks omitted).

         “If 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. 1995).

         The 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).

         When 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 omitted).


         After 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 ...

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