United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Brain Harris's Motion for Remand,
ECF No. 15, and Defendant Nancy A. Berryhill's
Cross-Motion to Affirm, ECF No. 18.
reasons discussed below, the Court finds that the ALJ's
decision is not supported by substantial evidence. The Court
grants Plaintiff's Motion for Remand and denies
Defendant's Cross-Motion to Affirm.
23, 2014, Plaintiff completed an application for disability
insurance benefits alleging disability since October 31,
2011. AR 25. Plaintiff was denied initially on November 13,
2014 and upon administrative reconsideration on April 13,
2015. AR 25. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) and appeared on
August 18, 2016. AR 25. In an opinion dated August 31, 2016,
ALJ Cynthia R. Hoover found Plaintiff not disabled. AR 25-34.
The Appeals Council denied Plaintiff's request for review
on July 17, 2017, rendering the ALJ's decision final. AR
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 June 23, 2014, the application date. AR 27. At
step two, the ALJ found that Plaintiff has the following
severe impairments: asthma, degenerative disc disease of the
cervical and lumbar spine, depressive disorder, anxiety
disorder, personality disorder and polysubstance abuse. AR
27. At step three, the ALJ found that Plaintiff's
impairments do not meet or medically equal a listed
impairment. AR 27-28.
found that Plaintiff has the residual functional capacity
(“RFC”) to perform medium work, as defined in 20
C.F.R. § 416.967(c), except that he needs to avoid
concentrated exposure to extreme cold, humidity and to
pulmonary irritants; he is able to perform unskilled work
with routine, simple repetitive tasks and occasional contact
with others in brief superficial interactions; and he needs
to work in a workplace that does not require adjustments to
frequent change. AR 28-32. Based on this RFC, the ALJ found
at step four that Plaintiff was unable to perform his past
relevant work as an electrician. AR 32. At step five, the ALJ
found that Plaintiff could perform jobs such as
laborer/warehouse worker (D.O.T. #922.687-058), kitchen
helper, (D.O.T. #318.687-010), and handpacker (D.O.T.
#920.587-018). AR 32-33.
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). As of
2016, the Social Security Administration has eliminated the
use of the term “credibility” from its policy, as
“subjective symptom evaluation is not an examination of
an individual's character.” SSR 16-3p. However,
ALJs may continue to consider the consistency of a
claimant's statements compared to other statements by the
claimant and to the overall evidence of record. Id.
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 RFC
whether the claimant can make an adjustment to substantial
gainful work other than his past relevant work. 20 C.F.R.