Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tyzbir v. Berryhill

United States District Court, D. Nevada

August 1, 2018

WENDY TYZBIR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         I. SUMMARY

         Before 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[1] Defendant filed (ECF Nos. 14, 14-3 through 14-21).

         For the reasons stated below, the Court accepts the R&R and remands for further proceedings consistent with this Order.


         Plaintiff 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.)

         Plaintiff 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).


         This 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.” Id.

         Congress 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).

         The 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 Order.


         A. Analytical Framework

         Generally, 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).

         At step 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, 482 140.

         Step 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, 482 140-41. 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.

         At step 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.

         Before 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 . . ..”)[2]. 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 ยง 416.945 (a)(1) (RFC is the most the claimant can do despite her limitations). In ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.