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McKenzie v. Berryhill

United States District Court, D. Nevada

May 13, 2019

JIM O. MCKENZIE, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.




         Before the Court is Plaintiff Jim McKenzie'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 free of legal error. The Court grants Plaintiff's Motion for Remand and denies Defendant's Cross-Motion to Affirm.


         On June 9, 2013, Plaintiff completed an application for disability insurance benefits alleging disability since April 1, 2012. AR 19. Plaintiff was denied initially on January 21, 2014 and upon administrative reconsideration on August 29, 2014. AR 19. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on March 3, 2016. AR 19. In an opinion dated May 10, 2016, ALJ Cynthia R. Hoover found Plaintiff not disabled. AR 19-29. The Appeals Council denied Plaintiff's request for review on September 1, 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 did not engage in substantial gainful activity during the period from his alleged onset date, April 1, 2012, through his date last insured, March 31, 2015. AR 21. At step two, the ALJ found that Plaintiff has the following severe impairments: anxiety disorder, morbid obesity, and avascular necrosis of the left hip. AR 21-22. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal a listed impairment. AR 22-23.

         The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R. § 404.1567(b), except that he is unable to climb ladders, ropes or scaffolds but occasionally climb ramps and stairs, stoop, kneel and crouch; he needs to avoid concentrated exposure to hazards such as heights; and he is able to perform unskilled work with no contact with public and only occasional contact with coworkers and supervisors. AR 23-27. Based on this RFC, the ALJ found at step four that Plaintiff was unable to perform his past relevant work as a security guard. AR 27. At step five, the ALJ found that Plaintiff could perform jobs such as light industrial bench hand (D.O.T. #702.684-026), addresser (D.O.T. #209.587-010), and electric assembler (D.O.T. #729.687-010). AR 28.


         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 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).


         The Court finds that the ALJ erred as a matter of law by failing to accurately incorporate the opinion of Brett Valette, Ph.D., in Plaintiff's RFC. The ALJ acknowledged that Dr. Valette's opinion was consistent with the record as a whole and stated that she gave his opinion great weight. However, the ALJ failed to incorporate Dr. Valette's findings into Plaintiff's RFC and instead adopted a contrary finding without a specific and legitimate reason. ...

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