United States District Court, D. Nevada
JIM O. MCKENZIE, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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.
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.
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. ...