United States District Court, D. Nevada
AMANDA K. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Amanda K. Johnson's Motion for
Summary Judgment, ECF No. 16, and Defendant Nancy A.
Berryhill's Cross-Motion to Affirm, ECF No. 19.
reasons discussed below, the Court finds that the ALJ's
decision contains error at step five that was not harmless.
Therefore, the Court grants Plaintiff's motion and
remands to Defendant for limited additional consideration.
3, 2014, Plaintiff completed an application for disability
insurance benefits alleging disability since January 1, 2010.
AR 95. Plaintiff was denied initially on December 2, 2014 and
upon administrative reconsideration on May 26, 2015. AR 95.
Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”) and appeared on September 1, 2016.
AR 95. At the hearing, Plaintiff amended the alleged onset
date of disability to June 3, 2014. AR 95. In an opinion
dated November 14, 2016, ALJ Gary L. Vanderhoof found
Plaintiff not disabled. AR 95-106. The Appeals Council denied
Plaintiff's request for review on February 9, 2018,
rendering the ALJ's decision final. AR 1-4.
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 3, 2014, the alleged onset date and
application date. AR 97. At step two, the ALJ found that
Plaintiff has the following severe impairments: obesity,
degenerative disc disease of the lumbar spine with
radiculopathy, and an affective disorder. AR 97-98. At step
three, the ALJ found that Plaintiff's impairments do not
meet or medically equal a listed impairment. AR 99-101.
found that Plaintiff has the residual functional capacity
(“RFC”) to perform light work, as defined in 20
C.F.R. §§ 416.967(b), except that she can stand and
walk for only three hours during an eight-hour work day; can
sit for six hours out of an eight-hour workday; can perform
occasional postural tasks but cannot climb ladders, ropes, or
scaffolds; must avoid concentrated exposure to vibrations;
cannot work around unprotected heights or dangerous moving
machinery; would use a brace on the right leg; can perform
simple non-complex work with occasional routine work changes,
and tending to work with things rather than people (such as
one-on-one, or up to one-on-three); and can have occasional
contact with co-worker and supervisors, but no tandem work or
work involving high production quotas or fast-paced
activities and with few variables. AR 102-04. Based on this
RFC, the ALJ found that, while Plaintiff has no past relevant
work at step four, Plaintiff can perform jobs that exist in
significant numbers in the national economy at step five. AR
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 she 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 her
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 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.