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Johnson v. Berryhill

United States District Court, D. Nevada

May 21, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.




         Before 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.

         For the 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.


         On June 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.

         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 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.

         The ALJ 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 104-06.


         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 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).

         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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