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Kelly v. Berryhill

United States District Court, D. Nevada

May 7, 2019

DARRELL E. KELLY, 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 is Plaintiff Darrell E. Kelly's Motion for Reversal, ECF No. 17, and Defendant Nancy A. Berryhill's Cross Motion to Affirm, ECF No. 18.

         For the reasons discussed below, the Court finds that the ALJ's decision contains no legal error and is supported by substantial evidence. Therefore, the Court denies Plaintiff's Motion for Reversal and grants Defendant's Cross Motion to Affirm.

         II. BACKGROUND

         On October 23, 2013, Plaintiff completed an application for disability insurance benefits alleging disability since January 1, 2011. AR 28. Plaintiff was denied initially on July 2, 2014 and upon administrative reconsideration on December 22, 2014. AR 28. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on May 5, 2016. AR 28. In an opinion dated June 14, 2016, ALJ Berry Jenkins found Plaintiff not disabled. AR 28-38. The Appeals Council denied Plaintiff's request for review on July 17, 2017, rendering the ALJ's decision final. AR 1-3.

         The ALJ followed the five-step sequential evaluation process for determining Social Security disability claims set forth at 20 C.F.R. § 404.1520(a)(4). At step one, that ALJ found that Plaintiff has not engaged in substantial gainful activity since January 1, 2011, the alleged onset date. AR 31. At step two, the ALJ found that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine, peripheral vascular disease, status-post angioplasty in both legs, plantar fascial fibromatosis, and tibialis posterior tendonitis. AR 31-32. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal a listed impairment. AR 32.

         The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), except that he must be able to alternate between sitting and standing every 30 minutes. AR 32-37. Based on this RFC, the ALJ found at step four that Plaintiff was able to perform his past relevant work as an information clerk. AR 37-38.

         III.LEGAL STANDARD

         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. When determining the credibility of a claimant's testimony, the ALJ engages in a two-step analysis. Garrison, 759 F.3d 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, 759 F.3d 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 four.

         IV. ...


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