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Arrand v. Berryhill

United States District Court, D. Nevada

April 19, 2019

ANDREW ARRAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court for consideration is the Report and Recommendation of the Honorable Cam Ferenbach, United States Magistrate Judge, entered December 23, 2018. ECF No. 27. Plaintiff objected on November 13, 2018. ECF No. 30. For the reasons discussed below, the Report and Recommendation is rejected in part and adopted in part, and the case is remanded for additional consideration.

         II. BACKGROUND

         Plaintiff initiated his application for Social Security benefits on September 12, 2013. Defendant denied the application initially and on reconsideration. Plaintiff, an army veteran, received disability benefits from the United States Department of Veterans Affairs (“VA”) on July 18, 2014. On November 23, 2015, Plaintiff and a vocational expert appeared and testified before Administrative Law Judge (“ALJ”) Cynthia R. Hoover. On January 22, 2016, the ALJ found that Plaintiff was not disabled.

         III. LEGAL STANDARD

         A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 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); see also Local Rule IB 3-2(b).

         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 ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Id. at 1039. When determining the credibility of a claimant's testimony, the ALJ engages in a two-step analysis. Id. at 1014-15. First, the claimant must have presented objective medical evidence of an underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter, 504 F.3d at 1035-36 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). The claimant does not need to produce evidence of the symptoms alleged or their severity, but he must show the impairments could reasonably cause some degree of the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, the ALJ determines the credibility of the claimant's testimony regarding the severity of his symptoms. Garrison at 1014-15. Unless affirmative evidence supports a finding of malingering, the ALJ may only reject the claimant's testimony by providing “specific findings as to credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

         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, 759 F.3d at 1010. “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 five. At step five, the ALJ determines based on the claimant's residential functional capacity (“RFC”) whether the claimant can make an adjustment to substantial gainful work other than his past relevant work. 20 C.F.R. § 404.1520(g).

         IV. DISCUSSION

         In the written decision dated January 22, 2016, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 27, 2010 and that he had the following severe impairments: anxiety related disorders, affective disorder, a 2mm disc protrusion at C5-6 toward the left, and intervertebral disc syndrome. She found that Plaintiff did not meet or equal a listing and had the residual functional capacity to perform light work, except that he could occasionally lift up to 20 pounds and frequently lift up to 10 pounds; stand or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; occasionally climb ladders, ramps and scaffolds; occasionally stoop, kneel, and crouch; should avoid even moderate exposure to hazards; was limited to unskilled work with some detailed instructions or tasks; could work with supervisors in non-intensive encounters; and could adapt to routine changes in work settings. Though the ALJ found Plaintiff was unable to perform his past relevant work, she found he was capable of performing other work existing in significant numbers in the national economy and identified the representative positions of order clerk (Dictionary of Occupational Titles (“DOT”) 209.567-014), document preparer (DOT 249.587-018), and election clerk (DOT 205.367-030).

         Plaintiff challenges the ALJ's decision on two bases. ECF No. 21. First, Plaintiff argues that the ALJ improperly discounted the VA's medical determination that Plaintiff is 100% disabled. Second, Plaintiff argues that the ALJ failed to ...


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