United States District Court, D. Nevada
SHANA L. CROWE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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 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.
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.
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 ...