United States District Court, D. Nevada
THOMAS P. GAGLIARDI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Thomas P. Gagliardi's Motion for
Remand/Reversal, ECF No. 13, and Defendant Nancy A.
Berryhill's Cross-Motion to Affirm, ECF No. 16.
reasons discussed below, the Court finds that the ALJ's
decision contains no legal error at step five. Therefore, the
Court denies Plaintiff's motion and affirms the ALJ's
August 23, 2013, Plaintiff completed an application for
disability insurance benefits alleging disability since April
11, 2013. AR 23. Plaintiff was denied initially on April 24,
2014 and upon administrative reconsideration on September 3,
2014. AR 23. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) and appeared on
October 16, 2015. AR 23. In an opinion dated January 20,
2016, ALJ I. K. Harrington found Plaintiff not disabled. AR
23- 36. The Appeals Council denied Plaintiff's request
for review on May 26, 2017, rendering the ALJ's decision
final. AR 6-8.
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 has not engaged in substantial gainful activity
since April 11, 2013, the alleged onset date. AR 25-26. At
step two, the ALJ found that Plaintiff has the following
severe impairment: residual effects of cerebral vascular
accident. AR 26-27. At step three, the ALJ found that
Plaintiff's impairments do not meet or medically equal a
listed impairment. AR 27-29.
found that Plaintiff has the residual functional capacity
(“RFC”) to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: he can perform simple, routine tasks involving
no more than simple, short instructions and make simple,
work-related decisions in a setting with few workplace
changes; can occasionally interact with the general public;
and can never operate motor vehicles. AR 29-34. Based on this
RFC, the ALJ found that, while Plaintiff is unable to perform
any past relevant work at step four, Plaintiff can perform
jobs that exist in significant numbers in the national
economy at step five and is therefore not disabled. AR 34-36.
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.
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.
raises only one argument on judicial review: Plaintiff
asserts that the ALJ erred at step five because all of the
jobs identified are unskilled light jobs. Plaintiff contends
that because the ALJ identified only unskilled light work
that he could perform on the basis of ...