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Denman v. Berryhill

United States District Court, D. Nevada

March 29, 2019

JANET S. DENMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER (MOT. TO REMAND - ECF NO. 24) (CROSS-MOT. TO AFFIRM - ECF NO. 25)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE.

         This 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.[1] 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).

         BACKGROUND

         On 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).

         Currently 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 evidence.

         DISCUSSION

         I. Applicable Law

         A. Judicial Review of Disability Determinations

         Federal 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. § 405(g).

         The 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).

         “For 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)).

         The 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 rejected).

         B. Disability Evaluation Process

         A 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 functional capacity.

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.

         II. The ALJ's Decision

         An ALJ 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.

         A. Step One

         The 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 step.

         At step 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.

         B. Step Two

         The 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).[2] 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 step.

         At step 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 “non-severe”. Id.

         C. ...


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