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Glasco v. Colvin

United States District Court, D. Nevada

July 16, 2018

JENNY L. GLASCO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




         Before the Court for consideration is the Report and Recommendation of the Honorable Peggy A. Leen, United States Magistrate Judge, entered October 19, 2016. (ECF No. 22). For the reasons discussed below, the Report and Recommendation is rejected.


         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 1:20-2:2, ECF No. 22). The Court adds the following procedural history.

         The Plaintiff filed her Complaint on April 29, 2014, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). ECF No. 1. The Commissioner filed her Answer on August 25, 2014. ECF No. 8 The Plaintiff filed her Motion for Remand and Supporting Memorandum of Points and Authorities November 5, 2014. ECF No. 14. The Commissioner filed her Opposition and Memorandum in Support of Cross-Motion for Summary Judgment on December 2, 2014. ECF Nos. 16, 17. No. reply was filed. Magistrate Judge Leen issued a Report and Recommendation on October 19, 2016, recommending that this Court deny the Motion to Reverse/Remand and grant the Cross-Motion to Affirm. ECF No. 22. The Plaintiff filed an Objection to the Report and Recommendation on October 31, 2016. ECF No. 23. The Commissioner filed a Response to the Objection on November 1, 2016. ECF No. 24.


         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 19). At step four, the ALJ considers the assessment of the claimant's residual functional capacity, as well as the claimant's capability of performing past relevant work. Garrison, 759 F.3d at 1011. Residual functional capacity 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).


         ALJ Norman L. Bennett issued an unfavorable decision on October 19, 2012, finding that Glasco was not disabled. AR 16-24. Prior to this finding, Govind Koka, D.O., acted as Ms. Glasco's treating physician for the relevant period. AR 149, 151, 343-346. On October 4, 2012, Dr. Koka completed a medical assessment of ability to do work related activities questionnaire. AR 343-346. Dr. Koka opined Ms. Glasco could occasionally lift 10 pounds and frequently lift less than 10 pounds; stand and/or walk for a total of less than 2 hours during an eight-hour workday; sit for less than 6 hours during an 8-hour workday, with the ability to periodically alternate between sitting and standing to relieve pain or discomfort; and has limited ability to push/pull with the upper and lower extremities. Id. Dr. Koka opined these limitations were present during the period from 2005 to 2012. He thus determined that Glasco did not have the residual functional capacity to perform her last job as a secretary with the full range of sedentary work.

         The ALJ, however, rejected Dr. Koka's opinion as to Glasco's residual functional capacity. He determined that Glasco retained the residual functional capacity to perform the full range of sedentary work. AR 19 ¶ 5. He found that she suffered from the severe impairments of degenerative disc disease of the cervical spine and degenerative disc disease of the lumbar spine status post remote surgeries. Nonetheless, he concluded Glasco had the residual functional capacity to perform a full range of sedentary work, and that during the closed period of disability, she was capable of performing her past relevant work as a secretary, which DOT classifies as SVP 6, sedentary. He therefore denied her application ...

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