United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 13, 16
William G. Cobb, United States Magistrate Judge.
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
the court is Plaintiff's Motion for Summary Judgment
seeking reversal of the final decision of the Commissioner
and the payment of benefits. (ECF No. 13.) The Commissioner
filed a Cross-Motion to Affirm and Opposition to
Plaintiff's motion. (ECF Nos. 16, 17.)
thorough review, it is recommended that Plaintiff's
motion be granted; the Commissioner's cross-motion to
affirm be denied; and, that this matter be remanded for
further administrative proceedings consistent with this
Report and Recommendation.
17, 2014, Plaintiff completed an application for disability
insurance benefits (DIB) under Title II of the Social
Security Act, alleging disability beginning June 12, 2014.
(Administrative Record (AR) 169-175.) The application was
denied initially and on reconsideration. (AR 132-141.)
requested a hearing before an administrative law judge (ALJ).
(AR 143-44.) ALJ John Heyer held a hearing on March 27, 2017,
in San Francisco, California. (AR 67-85.) Plaintiff, who was
represented by counsel, appeared and testified on her own
behalf at the hearing. Testimony was also taken from a
vocational expert (VE). On April 26, 2017, the ALJ issued a
decision finding Plaintiff not disabled. (AR 10-21.)
Plaintiff requested review, and the Appeals Council denied
the request, making the ALJ's decision the final decision
of the Commissioner. (AR 1-6, 168.)
then commenced this action for judicial review under 42
U.S.C. § 405(g) in the United States District Court for
the District of Nevada, as she now resides in Nevada.
Plaintiff argues that the ALJ impermissibly rejected the
opinions of her treating physician, Yvette Bordelon, M.D.,
claimant files an application for disability benefits, a
disability examiner at the state Disability Determination
agency, working with a doctor(s), makes the initial decision
on the claimant's application. See 20 C.F.R.
§§ 404.900(a)(1); 416.1400(a)(1). If the agency
denies the claim initially, the claimant may request
reconsideration of the denial, and the case is sent to a
different disability examiner for a new decision.
See 20 C.F.R. §§ 404.900(a)(2),
416.1400(a)(2). If the agency denies the claim on
reconsideration, the claimant may request a hearing and the
case is sent to an ALJ who works for the Social Security
Administration. See 20 C.F.R. §§
404.900(a)(3), 416.1400(a)(3). The ALJ issues a written
decision after the hearing. See 20 C.F.R. §
404.900(a)(3). If the ALJ denies the claim, the claimant may
request review by the Appeals Council. See 20 C.F.R.
§§ 404.900(a)(4), 416.1400(a)(4). If the Appeals
Council determines there is merit to the claim, it generally
remands the case to the ALJ for a new hearing. If the Appeals
Council denies review, the claimant can file an action in the
United States District Court. See 42 U.S.C. §
405(g); 20 C.F.R. §§ 404.900(a)(5), 416.1400(a)(5).
Five-Step Evaluation of Disability
the Social Security Act, "disability" is the
inability to engage "in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. §
1382c(a)(3)(A). A claimant is disabled if his or her physical
or mental impairment(s) are so severe as to preclude the
claimant from doing not only his or her previous work but
also, any other work which exists in the national economy,
considering his age, education and work experience. 42 U.S.C.
Commissioner has established a five-step sequential process
for determining whether a person is disabled. 20 C.F.R.
§404.1520 and § 416.920; see also Bowen v.
Yuckert, 482 U.S. 137, 140-41 (1987). In the first step,
the Commissioner determines whether the claimant is engaged
in "substantial gainful activity"; if so, a finding
of nondisability is made and the claim is denied. 20 C.F.R.
§ 404.152(a)(4)(i), (b); § 416.920(a)(4)(i);
Yuckert, 482 U.S. at 140. If the claimant is not
engaged in substantial gainful activity, the Commissioner
proceeds to step two.
second step requires the Commissioner to determine whether
the claimant's impairment or combination of impairments
are "severe." 20 C.F.R. § 404.1520(a)(4)(ii),
(c) and § 416.920(a)(4)(ii), (c); Yuckert, 482
U.S. at 140-41. An impairment is severe if it significantly
limits the claimant's physical or mental ability to do
basic work activities. Id. If the claimant has an
impairment(s) that is severe, the Commissioner proceeds to
third step, the Commissioner looks at a number of specific
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Listed Impairments) and determines whether the
claimant's impairment(s) meets or is the equivalent of
one of the Listed Impairments. 20 C.F.R. §
404.1520(a)(4)(iii), (d) and § 416.920(a)(4)(iii), (d).
The Commissioner presumes the Listed Impairments are severe
enough to preclude any gainful activity, regardless of age,
education or work experience. 20 C.F.R. § 404.1525(a),
§ 416.925(a). If the claimant's impairment meets or
equals one of the Listed Impairments, and is of sufficient
duration, the claimant is conclusively presumed disabled. 20
C.F.R. § 404.1520(a)(4)(iii), (d), §
416.920(a)(4)(iii), (d). If the claimant's impairment is
severe, but does not meet or equal one of the Listed
Impairments, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant can
still perform "past relevant work." 20 C.F.R.
§ 404.1520(a)(4)(iv), (e), (f) and §
416.920(a)(4)(iv), (e), (f). Past relevant work is that which
a claimant performed in the last 15 years, which lasted long
enough for him or her to learn to do it, and was substantial
gainful activity. 20 C.F.R. § 404.1565(a) and §
making this determination, the Commissioner assesses the
claimant's residual functional capacity (RFC) and the
physical and mental demands of the work previously performed.
See id.; 20 C.F.R. § 404.1520(a)(4)(v), §
416.920(a)(4)(v); see also Berry v. Astrue, 622 F.3d
1228, 1231 (9th Cir. 2010). RFC is what the claimant can
still do despite his or her limitations. 20 C.F.R. §
404.1545 and § 416.945. In determining the RFC, the
Commissioner must assess all evidence, including the
claimant's and others' descriptions of the
limitation(s), and medical reports, to determine what
capacity the claimant has for work despite his or her
impairments. 20 C.F.R. § 404.1545(a)(3) and
claimant can return to previous work if he or she can perform
the "actual functional demands and job duties of a
particular pat relevant job" or "[t]he functional
demands and job duties of the [past] occupation as generally
required by employers throughout the national economy."
Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir.
2001) (internal quotation marks and citation omitted).
claimant can still do past relevant work, then he or she is
not disabled. 20 C.F.R. § 404.1520(f) and §
416.920(f); see also Berry, 62 F.3d at 131.
however, the claimant cannot perform past relevant work, the
burden shifts to the Commissioner to establish at step five
that the claimant can perform other work available in the
national economy. 20 C.F.R. §§ 404.1520(e),
416.920(e); see also Yuckert, 482 U.S. at 141-42,
144. This means "work which exists in significant
numbers either in the region where such individual lives or
in several regions of the country." Gutierrez v.
Comm'r of Soc. Sec. Admin., 740 F.3d 519, 528 (9th
Cir. 2014). If the claimant cannot do the work he or she did
in the past, the Commissioner must consider the
claimant's RFC, age, education, and past work experience
to determine whether the claimant can do other work.
Yuckert, 482 U.S. at 141-42. The Commissioner may
meet this burden either through the testimony of a VE or by
reference to the Grids. Tackett v. Apfel, 180 F.3d
1094, 1100 (9th Cir. 1999).
step five the Commissioner establishes that the claimant can
do other work which exists in the national economy, then he
or she is not disabled. 20 C.F.R. § 404.1566(b), §
416.966(b). Conversely, if the Commissioner determines the
claimant unable to adjust to any other work, the claimant
will be found disabled. 20 C.F.R. § 404.1520(g), §
416.920(g); see also Lockwood, 616 F.3d at 1071;
Valentine v. Comm'r of Soc. Sec. Admin., 574
F.3d 685, 689 (9th Cir. 2009).
Judicial Review & Substantial Evidence
court must affirm the ALJ's determination if it is based
on proper legal standards and the findings are supported by
substantial evidence in the record. Gutierrez, 740
F.3d at 522 (citing 42 U.S.C. § 405(g)).
"Substantial evidence is 'more than a mere scintilla
but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Id. at 523-24 (quoting Hill v.
Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)).
determine whether substantial evidence exists, the court must
look at the record as a whole, considering both evidence that
supports and undermines the ALJ's decision.
Gutierrez, 740 F.3d at 524 (citing Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The court
"'may not affirm simply by isolating a specific
quantum of supporting evidence.'" Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). "'The ALJ is responsible for
determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities.'"
Id. (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). "If the evidence can
reasonably support either affirming or reversing, 'the
reviewing court may not substitute its judgment' for that
of the Commissioner." Gutierrez, 740 F.3d at
524 (quoting Reddick v. Chater, 157 F.3d 715, 720-21
(9th Cir. 1996)). That being said, "a decision supported
by substantial evidence will still be set aside if the ALJ
did not apply proper legal standards." Id.
(citing Bray v. Comm'r of Soc. Sec. Admin., 554
F.3d 1219, 1222 (9th Cir. 2009); Benton v. Barnhart,
331 F.3d 1030, 1035 (9th Cir. 2003)). In addition, the court
will "review only the reasons provided by the ALJ in the
disability determination and may not affirm the ALJ on a
ground upon which he did not rely." Garrison,
759 F.3d at 1010 (citing Connett v. Barnhart, 340
F.3d 871, 874 (9th Cir. 2003)).
ALJ's Findings in this Case
one, the ALJ found Plaintiff met the insured status
requirements through December 31, 2018, and had not engaged
in substantial gainful activity since the alleged onset date
of June 12, 2014. (AR 15.)
two, the ALJ concluded Plaintiff had the following severe
impairment: status post implantation of deep brain stimulator
to control tremors. (AR 15.)
three, the ALJ determined Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the Listed
Impairments. (AR 15.)
four, the ALJ assessed Plaintiff as having the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b), except
she could lift 20 pounds; sit, stand and walk for six hours
in an eight-hour day; and, use the hands on an occasional
basis for work-related activities. The ALJ also found that
Plaintiff had no significant work-related mental health
limitations. (AR 15-20.)
then concluded Plaintiff was unable to perform any of her
past relevant work. (AR 20.)
five, the ALJ determined, based on VE testimony, that
considering Plaintiff's age, education, work experience
and RFC, there were jobs that existed in significant numbers
in the national economy that Plaintiff could perform,
including: call out operator (Dictionary of Occupational
Titles (DOT) number 237.367-014); and surveillance system
monitor (DOT number 379.367-010). (AR 21.) As a result, the
ALJ found Plaintiff not disabled from June 12, 2014, through
the date of the decision-April 26, 2017. (AR 21.)