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Schmitt v. Berryhill

United States District Court, D. Nevada

June 27, 2019

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




         Before the Court are Plaintiff's Motion to Compel, ECF No. 21, Plaintiff's Motion for Reversal and/or Remand, ECF No. 22, Defendant's Cross-Motion to Affirm, ECF No. 25, and Plaintiff's Motion to Quash, ECF No. 27.

         For the reasons discussed below, the Court finds that the ALJ's opinion is not supported by substantial evidence and contains legal error. The Court finds that the credit-as-true rule applies to support a finding of disability. Therefore, the Court remands to Defendant for an award of benefits.


         On July 12, 2013, Plaintiff completed an application for disability insurance benefits alleging disability since September 15, 2008. AR 12. Plaintiff's application was denied initially on November 8, 2013 and upon administrative reconsideration on January 21, 2014. AR 12. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on April 24, 2015. AR 12. In an opinion dated May 1, 2015, ALJ Brenton L. Rogozen found Plaintiff not disabled. AR 12-19. The Appeals Council denied Plaintiff's request for review on March 10, 2017, 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). At step one, that ALJ found that Plaintiff did not engage in substantial gainful activity from his alleged onset date of September 15, 2008 to his date last insured of December 31, 2012. AR 14. At step two, the ALJ found that Plaintiff had the following severe impairments: polyarthralgia, parathyroid, and systemic lupus erythematosus. AR 14-16. At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal a listed impairment. AR 16.

         The ALJ found that as of the date last insured, Plaintiff had the residual functional capacity (“RFC”) to perform the full range of medium work, as defined in 20 C.F.R. §§ 404.1567(c). AR 16-18. Based on this RFC, the ALJ found at step four that Plaintiff was able to perform his past relevant work as a real estate agent. AR 18-19.


         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 he 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 his 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 four.

         IV. ...

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