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Gagliardi v. Berryhill

United States District Court, D. Nevada

July 1, 2019

THOMAS P. GAGLIARDI, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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.

         For the 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 decision.

         II. BACKGROUND

         On 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.

         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 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.

         The ALJ 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.

         III. LEGAL STANDARD

         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 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. DISCUSSION

         Plaintiff 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 ...


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