United States District Court, D. Nevada
WILLIAM G. COBB MAGISTRATE JUDGE.
ORDER REGARDING REPORT AND RECOMMENDATION
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge William G. Cobb (ECF No. 21)
(“R&R” or “Recommendation”)
regarding Plaintiff Wendy Tyzbir's Motion for Reversal
and/or Remand (“Motion to Remand”) (ECF Nos. 15,
16) and Defendant Acting Commissioner's cross-motion to
affirm and response thereto (“Cross-Motion”) (ECF
Nos. 19, 20). Judge Cobb recommends granting the Motion to
Remand and denying the Cross-Motion. (ECF No. 21.) Defendant
filed a timely objection to the R&R (ECF No. 22) and
Plaintiff responded (ECF No. 23). In addition to the noted
filings, the Court has reviewed the administrative
record Defendant filed (ECF Nos. 14, 14-3 through
reasons stated below, the Court accepts the R&R and
remands for further proceedings consistent with this Order.
completed an application for disability insurance benefits
and supplemental security income under Titles II and XVI of
the Social Security Act (“Act”). (AR 21, 185-
196.) The application was denied initially and on
reconsideration. (AR 133-136, 139, 141- 46.)
sought and was afforded a hearing wherein she appeared with
counsel and testified before an administrative law judge
(“ALJ”). (AR 38-66.) The ALJ issued a decision,
finding Plaintiff is not disabled under applicable
provisions. (AR 17-31.) Plaintiff then requested review of
the ALJ's decision before the Appeals Council
(“AC”). (AR 1-5.) The AC denied the request.
(Id.) Plaintiff commenced the instant action for
judicial review pursuant to 42 U.S.C. § 405(g).
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)(C). Where a party
timely objects to a magistrate judge's report and
recommendation, then the Court is required to “make a
de novo determination of those portions of the [report and
recommendation] to which objection is made.”
has limited the scope of judicial review of the
Commissioner's decisions to deny benefits under the Act.
In reviewing findings of fact, the Court must determine
whether the decision of the Commissioner is supported by
substantial evidence. 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 v. Comm'r of Soc.
Sec., 740 F.3d 519, 522- 23 (9th Cir. 2014) (internal
quotation marks and citations omitted). The court must
consider the entire record as a whole to determine whether
substantial evidence exists, and it must consider evidence
that both supports and undermines the ALJ's decision.
Id. at 523 (citation omitted). “If the
ALJ's finding is supported by substantial evidence, the
court may not engage in second-guessing.”
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). In weighing the evidence and making findings, the ALJ
must also apply the proper legal standards. Id.
(citations omitted). Courts “may not reverse an
ALJ's decision on account of an error that is
harmless.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012).
Court has undertaken de novo review in this matter
in determining whether to adopt Judge Cobb's R&R.
Upon reviewing the R&R, the administrative record, and
underlying briefs, the Court finds good cause to accept and
adopt the R&R. The Court remands the matter to the ALJ
for further proceedings and findings consistent with this
an individual seeking benefits (claimant) under the Act must
be medically determined to be physically and/or mentally
impaired to an extent that renders her incapable of engaging
“in any substantial gainful activity.” 42 U.S.C.
§ 1382c(a)(3)(A)(B). The Social Security Administration
has established a five step sequential evaluative process for
determining whether a person is disabled. 20 CFR §
404.1520(a) and 416.920(a); see also Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1897).
one, the decisionmaker considers whether the claimant
currently engages in “substantial gainful
activity.” 20 CFR § 404.1520(a)(4)(i). If the
claimant is not engaged in substantial gainful activity, the
decisionmaker proceeds to step two. 20 CFR §
404.1520(a)(4), (b); Yuckert, 482 U.S.at 140.
two requires that the decisionmaker considers whether the
individual has a medically determinable impairment or
combination of impairments that is “severe.” 20
CFR § 404.1520(a)(4)(ii), (c) and §
416.920(a)(4)(ii); Yuckert, 482 U.S.at 140-41.
Impairment is severe if it significantly limits an
individual's ability to perform basic work activities.
Id. Impairment is “not severe” where
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. Smolen v. Chater,
80 F.3d 1273, 1290 (9th Cir. 1996). If the decisonmaker finds
the individual has an impairment(s) that is severe, the
decisionmaker will proceed to step three. Yuckert,
482 U.S at 141.
three, the decisionmaker determines whether the impairment or
combination of impairments meet or is the medical equivalent
of an impairment listed in 20 CFR Part 404, Subpart P,
Appendix 1. 20 CFR § 404.1520(a)(4)(iii), (d) and §
416.920(a)(4)(iii), (c). If the claimant's impairment
meets or equals one of the listed impairments, of sufficient
duration, the claimant is conclusively presumed disabled.
Yuckert, 482 U.S at 141. If the claimant's
impairment(s) is severe, but does not meet or equal one of
the listed impairments, the decisionmaker proceeds.
Yuckert, 482 U.S at 141.
considering step four of the sequential evaluative process,
the decisionmaker must first determine the individual's
residual functional capacity (“RFC”). 20 CFR
§ 416.920(a)(4); see Laborin v. Berryhill, 867
F.3d 1151, 1153 (9th Cir. 2017) (citing 20 CFR §
416.920(a)(4)) (“The ALJ assesses a claimant's RFC
between steps three and four of the five-step sequential
evaluation process . . ..”). A claimant's RFC is the
claimant's ability to do sustained physical and mental
work activities on a “regular and continuing
basis” despite limitations from her impairments. Titles
II & XVI: Assessing Residual Functional Capacity in
Initial Claims, Social Security Ruling (“SSR”)
96-8p, 61 Fed. Reg. 34474, 34475; see 20 CFR §
416.945 (a)(1) (RFC is the most the claimant can do despite
her limitations). In ...