United States District Court, D. Nevada
JANET S. DENMAN, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER (MOT. TO REMAND - ECF NO. 24) (CROSS-MOT. TO
AFFIRM - ECF NO. 25)
A. LEEN UNITED STATES MAGISTRATE JUDGE.
matter involves Plaintiff Janet S. Denman's appeal and
request for judicial review of the Acting Commissioner of
Social Security's final decision denying her claim for
disability insurance benefits under Title II of the Social
Security Act (the “Act”), 42 U.S.C. §§
401-33. This case is referred for a determination
and entry of final judgment pursuant to 28 U.S.C. §
636(c) and Rule 73 of the Federal Rules of Civil Procedure.
See Reference Order (ECF No. 26).
January 24, 2012, Janet Denman protectively filed an
application for a period of disability and disability
insurance benefits. AR 200-01. She appeared at an
administrative hearing with counsel, Virginius Dabney, on
April 30, 2014. AR 57-85. The ALJ, David Gatto, issued a
decision on June 21, 2014, determining that Denman was not
disabled. AR 27-57. She requested review of the ALJ's
decision by the Appeals Council. AR 26. The Appeals Council
denied the request for review, making the ALJ's decision
the final decision of the Commissioner. AR 1-6. Denman
therefore filed a complaint seeking judicial review pursuant
to 42 U.S.C. § 405(g).
before the court is Denman's Motion for Reversal and/or
Remand (ECF No. 24), and the Commissioner's Cross-Motion
to Affirm (ECF No. 25). Denman did not file a reply and the
time for filing a reply has expired. Denman's sole claim
on appeal is that the ALJ committed reversible error by
failing to properly consider her testimony. For the reasons
explained below, the court denies the Motion and grants the
Commissioner's Cross-Motion. The ALJ's finding that
Denman has not been under a disability as defined in the
Social Security Act from December 1, 2011, through the date
of the April 3, 2014 decision is supported by substantial
Judicial Review of Disability Determinations
district courts review administrative decisions in social
security benefits cases under 42 U.S.C. § 405(g).
However, judicial “review of social security
determinations is limited.” Treichler v. Comm'r
of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014). After an ALJ has held a hearing and the decision is
final, § 405(g) allows a disability claimant to seek
judicial review of an adverse decision by filing a lawsuit in
a federal district court within the district where the
claimant lives. The statute authorizes the court 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.” 42 U.S.C.
ALJ's findings of fact are conclusive if they are
supported by “substantial evidence.” 42 U.S.C.
§ 405(g). The court may reverse “only if the
ALJ's decision was not supported by substantial evidence
in the record as a whole or if the ALJ applied the wrong
legal standard.” Shaibi v. Berryhill, 883 F.3d
1102, 1106 (9th Cir. 2017). “Substantial evidence means
more than a mere scintilla, but less than a preponderance. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir.
2017). To determine whether the ALJ's findings are
supported by substantial evidence, a court “must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Ghanim v. Colvin, 763 F.3d 1154,
1160 (9th Cir. 2014).
highly fact-intensive individualized determinations like a
claimant's entitlement to disability benefits, Congress
‘places a premium upon agency expertise, and, for the
sake of uniformity, it is usually better to minimize the
opportunity for reviewing courts to substitute their
discretion for that of the agency'.”
Treichler, 775 F.3d at 1098 (quoting Consolo v.
Fed. Mar. Comm'n, 383 U.S. 607, 621 (1966)). Thus,
courts must “leave it to the ALJ to determine
credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record.” Id. (citing 42
U.S.C. § 405(g); Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). The ALJ's findings must be
upheld if they are supported by inferences reasonably drawn
from the record. Batson v. Comm'r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Where evidence is susceptible to more than one
rational interpretation, the ALJ's decision should be
upheld.” Trevizo, 871 F.3d at 674-75 (quoting
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)).
court may only review the reasons the ALJ provided in the
disability decision and “may not affirm the ALJ on a
ground upon which he did not rely.” Id. at 675
(quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th
Cir. 2014)). Thus, an ALJ's findings should be stated
with enough specificity so that a court does not speculate as
to the basis of the findings when determining if the findings
are supported by substantial evidence. See Burrell v.
Colvin, 775 F.3d 1133, 1140-41 (9th Cir. 2014). Cursory
findings of fact lacking explicit statements about what
portions of evidence were accepted or rejected are not
sufficient. Lewin v. Schweiker, 654 F.2d 631, 634
(9th Cir. 1981). An ALJ's findings should be
comprehensive, analytical, and include a statement explaining
the “factual foundations on which the ultimate factual
conclusions are based.” Id.; see also
Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (an
ALJ need not “discuss every piece of evidence”
but must explain why significant or probative evidence was
Disability Evaluation Process
five-step sequential evaluation process is used to determine
whether a claimant is disabled and eligible for benefits:
First, the agency must consider the claimant's current
work activity. Second, the agency must consider the medical
severity of the claimant's impairments. Third, the agency
must determine whether the severity of those impairments is
sufficient to meet, or medically equal, the criteria of an
impairment listed in three of the Social Security Act's
implementing regulations, published at 20 C.F.R. §§
404.1520(d), 404.1525-26. Fourth, the agency determines
whether the claimant can perform past relevant work in light
of the claimant's residual functional capacity. Fifth,
the agency assesses whether the claimant can make an
adjustment to other work that exists in significant numbers
in the national economy, based on the claimant's residual
Shaibi, 883 F.3d at 1106 (citing 20 C.F.R. §
404.1520(a)). “ ‘The claimant carries the initial
burden of proving a disability in steps one through
four'.” Id. (quoting Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). To meet
this burden, the claimant must demonstrate an
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). If the claimant establishes an
inability to continue his or her past work with specific
medical evidence, the burden shifts to the Commissioner in
step five to show that the claimant can perform other
substantial gainful work. Shaibi, 883 F.3d at 1106.
The ALJ's Decision
is required to follow the five-step process to determine
whether a claimant is disabled. 20 C.F.R. § 416.920. If
an ALJ makes a finding of disability or non-disability at any
step, no further evaluation is required. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); Barnhart v.
Thomas, 540 U.S. 20, 24 (2003). The ALJ followed the
five-step process and issued an unfavorable decision on June
21, 2014. AR 30-56.
first step of the disability evaluation requires an ALJ to
determine whether the claimant is currently engaging in
substantial gainful activity (“SGA”). 20 C.F.R.
§§ 404.1520(b), 416.920(b). SGA is defined as work
activity that is both substantial and gainful; it involves
doing significant physical or mental activities, usually for
pay or profit. 20 C.F.R. §§ 404.1572(a)-(b),
416.972(a)-(b). If the claimant is currently engaging in SGA,
then a finding of not disabled is made. If the claimant is
not engaging in SGA, then the analysis proceeds to the second
one in the Decision, the ALJ found that Ms. Denman had not
engaged in SGA since December 1, 2011, the alleged onset
date. AR 32.
second step of the disability evaluation addresses whether a
claimant has a medically-determinable impairment that is
severe or a combination of impairments that significantly
limits him or her from performing basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). An impairment or
combination of impairments is not severe when medical and
other evidence establish only a slight abnormality or a
combination of slight abnormalities that would have no more
than a minimal effect on the claimant's ability to work.
20 C.F.R. §§ 404.1521, 416.921; Social Security
Ruling (“SSR”) 85-28, 1985 WL 56856 (Jan. 1,
1985), SSR 96-3p, 61 Fed. Reg. 34468 (July 2, 1996); SSR
96-4p, 61 Fed. Reg. 34488 (July 2, 1996). If a claimant
does not have a severe medically-determinable impairment or
combination of impairments, then an ALJ will make a finding
that a claimant is not disabled. If a claimant has a severe
medically-determinable impairment or combination of
impairments, then an ALJ's analysis proceeds to the third
two in the Decision, the ALJ found that Ms. Denman had the
following severe impairments: degenerative disc disease of
the cervical and lumbar spine; a history of bilateral
tinnitus; and fibromyalgia. AR 32-33. The ALJ found that
these impairments more than minimally affected Denman's
ability to perform basic work activities and were therefore
considered “severe” for Social Security purposes.
He considered all other impairments she alleged including
depression, anxiety, history of migraines, chronic pain
syndrome, and a history of diffused joint pain primarily of
the elbows and knees as “non-severe” because he
found they did not cause significant limitation in
Denman's ability to perform basic work activities.
Specifically, he found that the record did not document any
significant limitations associated with them and that there
was no record of an adverse brain scan or treatment with a
neurologist with respect to migraines. Id. An
overall review of the medical record revealed that these
conditions were adequately controlled with medication when
Denman remained compliant with the medication regimen.
Id. Although Denman reported a history of
“lupus, ” he found this was not a medically
determinable impairment supported by the record because all
testing and laboratory findings with respect to this
condition were negative. Id. The ALJ found that
Denman's alleged anxiety and depression did not cause
more than minimal limitations in her ability to perform basic
mental work activities and are therefore