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Harris v. Berryhill

United States District Court, D. Nevada

May 10, 2019

BRIAN HARRIS, 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 Brain Harris's Motion for Remand, ECF No. 15, 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 is not supported by substantial evidence. The Court grants Plaintiff's Motion for Remand and denies Defendant's Cross-Motion to Affirm.

         II. BACKGROUND

         On June 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 1-4.

         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 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.

         The ALJ 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.

         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). 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.

         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 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. ...


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