United States District Court, D. Nevada
DARRELL E. KELLY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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.
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).
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.