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Crowe v. Berryhill

United States District Court, D. Nevada

July 24, 2019

SHANA L. CROWE, 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 Shana L. Crowe's Motion for Reversal and/or Remand, ECF No. 17, and Defendant Nancy A. Berryhill's Cross-Motion to Affirm, ECF No. 18.

         For the reasons discussed below, the Court finds that the ALJ's decision contains legal error and is not supported by substantial evidence. The Court grants Plaintiff's Motion for Remand and denies Defendant's Cross-Motion to Affirm.

         II.BACKGROUND

         On February 11, 2014, Plaintiff completed an application for disability insurance benefits and supplemental security income alleging disability since September 2, 2013. AR 101. Plaintiff was denied initially on July 24, 2014 and upon administrative reconsideration on February 19, 2015. AR 101. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on May 27, 2016. AR 101. At the hearing, Plaintiff amended her alleged onset date of disability to December 1, 2015. AR 101. In an opinion dated July 5, 2016, ALJ Norman L. Bennett found Plaintiff not disabled. AR 101-09. The Appeals Council denied Plaintiff's request for review on February 27, 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) and § 416.920(a). At step one, that ALJ found that Plaintiff has not engaged in substantial gainful activity since December 1, 2015. AR 103. At step two, the ALJ found that Plaintiff has the following severe impairments: mild osteoarthritis of the right knee, insulin dependent diabetes mellitus with neuropathy, degenerative disc disease of the lumbar and cervical spine, hypertension, kidney disease, and bilateral carpal tunnel syndrome. AR 103-04. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal a listed impairment. AR 104.

         The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform a range of light work as defined in 20 CFR § 404.1567(b) and § 416.967(b) as follows: she can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; can stand and/or walk for a total of four hours, and sit for a total of six hours, in an eight-hour workday with normal breaks; she can occasionally climb ramps or stairs, but cannot use ladders, ropes or scaffolds; she can occasionally bend, stoop, kneel, crouch or crawl; and she can perform occasional fine manipulation bilaterally. AR 104-06. The ALJ found at step four that Plaintiff was unable to perform any past relevant work. AR 107. At step five, the ALJ found that Plaintiff could perform jobs such as ticket taker (D.O.T. #344.667-010), garment sorter (D.O.T. # 222.687-014), and office helper (D.O.T. #239.567-010). AR 107-08.

         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 ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Id. When determining assigning weight and resolving conflicts in medical testimony, the 9th Circuit distinguishes the opinions of three types of physicians: (1) treating physicians; (2) examining physicians; (3) neither treating nor examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The treating physician's opinion is generally entitled to more weight. Id. The ALJ errs when he fails to explicitly reject a medical opinion, fails to provide specific and legitimate reasons for crediting one medical opinion over another, ignores or rejects an opinion by offering boilerplate language, or assigns too little weight to an opinion without explanation for why another opinion is more persuasive. Garrison, 759 F.3d at 1012-13.

         When weighing a claimant's testimony, the ALJ engages in a two-step analysis. Id. 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 she 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 weighs the claimant's testimony regarding the severity of her 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). As of March 28, 2016, the Social Security Administration has eliminated the use of the term “credibility” from its policy, as “subjective symptom evaluation is not an examination of an individual's character.” SSR 16-3p. However, ALJs may continue to consider the consistency of a claimant's statements compared to other statements by the claimant and to the overall evidence of record. Id.

         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), 416.920(a); 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 ...


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