United States District Court, D. Nevada
LISA M. CARRARA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned magistrate judge for a
report of findings and recommendations under 28 U.S.C. §
636(b)(1)(B)-(C) and Local Rule IB 1-4. The case involves
review of an administrative action by the Commissioner of
Social Security (“Commissioner”) denying
Plaintiff Lisa M. Carrara's (“Plaintiff”)
application for disability insurance benefits under Titles II
and XVI of the Social Security Act. The court has reviewed
Plaintiff's motion to remand (ECF No. 14), filed December
19, 2018, the Commissioner's response and cross-motion to
affirm (ECF Nos. 15, 16), filed January 18, 2019. Plaintiff
did not file a reply.
March 19, 2014 Plaintiff applied for disability insurance
benefits and supplemental security income under Titles II and
XVI of the Act, alleging an onset date of April 1, 2010.
AR21, 92, 249-65. Plaintiff's claim was
denied initially, and on reconsideration. AR 171-75, 183-94.
A hearing was held before an Administrative Law Judge
(“ALJ”) on September 12, 2016. AR 47-91. On
February 28, 2017, the ALJ issued a decision finding
Plaintiff was not disabled. AR 18-39. The ALJ's decision
became the Commissioner's final decision when the Appeals
Council denied review. AR 7-12. Plaintiff, on June 21, 2018,
commenced this action for judicial review under 42 U.S.C.
§§ 405(g). (See Complaint (ECF No. 1).)
followed the five-step sequential evaluation process set
forth in 20 C.F.R. §§ 404.1520 and 416.920. AR
22-23. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from the amended
alleged onset date of April 1, 2010. AR 23. At step two, the
ALJ found that Plaintiff had medically determinable
“severe” impairments of disorder of the shoulders
bilaterally; disorder of the cervical spine; disorder of the
right elbow; anxiety; and depression. Id. At step
three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled a listed impairment in 20 CFR Part 404,
Subpart P, Appendix 1. AR 26. At step four, the ALJ found
that the claimant has the residual functional capacity to
perform light work but with the following restrictions: she
is limited to lifting or carrying no more than 20 pounds
occasionally and 10 pounds frequently; she is capable of
standing and/or walking for six hours in an eight-hour
workday; she is capable of sitting for six hours in an
eight-hour workday; she can perform all postural activities
frequently except that she can only occasionally balance,
crawl, and climb ladders, ropes, or scaffold; she can only
occasionally reach overhead bilaterally; she is limited to
frequent but not continuous reaching in all other planes with
her right upper extremity; she is otherwise unlimited with
regard to the use of her upper extremities; she must avoid
concentrated exposure to excessive noise such as that found
in factory or construction sites, or in environments where
there are large crowds; she must avoid concentrated exposure
to excessive vibration, hazardous machinery, unprotected
heights, and operational control of moving machinery; and
finally, she is limited to simple tasks typical of unskilled
occupations. AR 29. The claimant is unable to perform any
past relevant work. AR 37. Claimant was born on April 17,
1970, and was 39 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset date.
Id. The claimant has at least a high school
education and is able to communicate in English. Id.
Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled” whether or
not the claimant has transferable job skills. Id.
Considering the claimant's age, education, work
experience and the residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform. Id.
Accordingly, the claimant has not been under a disability, as
defined in the Social Security Act, from April 1, 2010
through the date of this decision. AR 38. The claimant's
substance abuse disorder is not a contributing factor
material to the determination of disability. AR 39.
Standard of Review
decisions in social security disability benefits cases are
reviewed under 42 U.S.C. § 405(g). See Akopyan v.
Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section
405(g) states: “Any individual, after any final
decision of the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a
civil action . . . brought in the district court of the
United States for the judicial district in which the
plaintiff resides.” The court may enter “upon the
pleadings and transcripts of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing.” Id. The Ninth
Circuit reviews a decision affirming, modifying, or reversing
a decision of the Commissioner de novo. See Batson v.
Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004).
Commissioner's findings of fact are conclusive if
supported by substantial evidence. See 42 U.S.C.
§ 405(g); Ukolov v. Barnhart, 420 F.3d 1002
(9th Cir. 2005). However, the Commissioner's findings may
be set aside if they are based on legal error or not
supported by substantial evidence. See Stout v.
Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002). The Ninth Circuit defines substantial
evidence as “more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995); see also Bayliss v. Barnhart, 427 F.3d 1211,
1214 n.1 (9th Cir. 2005). In determining whether the
Commissioner's findings are supported by substantial
evidence, the court “must review the administrative
record as a whole, weighing both the evidence that supports
and the evidence that detracts from the Commissioner's
conclusion.” Reddick v. Chater, 157 F.3d 715,
720 (9th Cir. 1998); see also Smolen v. Chater, 80
F.3d 1273, 1279 (9th Cir. 1996).
the substantial evidence test, findings must be upheld if
supported by inferences reasonably drawn from the record.
Batson, 359 F.3d at 1193. When the evidence will
support more than one rational interpretation, the court must
defer to the Commissioner's interpretation. See Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005);
Flaten v. Sec'y of Health and Human Serv., 44
F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue
before the court is not whether the Commissioner could
reasonably have reached a different conclusion, but whether
the final decision is supported by substantial evidence. It
is incumbent on the ALJ to make specific findings so that the
court does not speculate as to the basis of the findings when
determining if the Commissioner's decision is supported
by substantial evidence. Mere cursory findings of fact
without explicit statements as to what portions of the
evidence were accepted or rejected are not sufficient.
Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir.
1981). The ALJ's findings “should be as
comprehensive and analytical as feasible, and where
appropriate, should include a statement of subordinate
factual foundations on which the ultimate factual conclusions
are based.” Id.
Disability Evaluation Process
individual seeking disability benefits has the initial burden
of proving disability. Roberts v. Shalala, 66 F.3d
179, 182 (9th Cir. 1995). To meet this burden, the individual
must demonstrate the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected . . . to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). More
specifically, the individual must provide “specific
medical evidence” in support of her claim for
disability. 20 C.F.R. § 404.1514. If the individual
establishes an inability to perform her prior ...