United States District Court, D. Nevada
ROBERT K. SCHMITT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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 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).
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.