United States District Court, D. Nevada
ORDER ACCEPTING REPORT AND RECOMMENDATION, DENYING
MOTION FOR REMAND, AND GRANTING MOTION TO AFFIRM [ECF NOS.
15, 16, 22]
P. GORDON UNITED STATES DISTRICT JUDGE.
Kim Pedersen filed an application for disability insurance on
November 19, 2015 alleging she is mentally and physically
disabled. The Social Security Administration denied
Pedersen’s application both when she filed it and on
reconsideration. Administrative Law Judge Christopher Daniels
held a hearing in August 2017 and ruled that Pedersen was not
disabled. The Appeals Council denied Pedersen’s request
for review in February 2018. The ALJ’s decision
therefore became the Commissioner’s final decision.
Pedersen now seeks review of that decision, arguing that I
should reverse it or remand the case for further proceedings
before the Commissioner.
March 21, 2019, Magistrate Judge Koppe recommended that I
deny Pedersen’s motion to remand and grant the
defendant’s motion to affirm. ECF No. 22. Pedersen
objects, arguing that the ALJ: (1) improperly determined that
Pedersen’s mental impairments were not severe and
wrongly rejected the opinion of Pedersen’s treating
doctor; (2) improperly discounted Pedersen’s testimony;
(3) improperly rejected lay testimony; and (4) improperly
relied on incomplete and flawed testimony from a vocational
expert. Having reviewed the record de novo, I agree with
Judge Koppe so I deny the motion for remand and grant the
motion to affirm.
party objects to a magistrate judge’s report and
recommendation on a dispositive issue, the district court
must conduct a de novo review of the challenged findings and
recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. §
636(b)(1)(B). The district judge “may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge, ”
“receive further evidence, ” or “recommit
the matter to the magistrate judge with instructions.”
28 U.S.C. § 636(b)(1).
review of an ALJ’s decision to deny benefits is limited
to determining whether the ALJ's findings were supported
by substantial evidence and whether the ALJ applied the
appropriate legal standards. Jamerson v. Chafer, 112
F.3d 1064, 1066 (9th Cir. 1997). I may set aside the
ALJ’s determination only if the ALJ’s finding is
not supported by substantial evidence or is based on legal
error. Id. “Substantial evidence means more
than a scintilla, but less than a preponderance”; it is
evidence that “a reasonable person might accept as
adequate to support a conclusion.” Smolet v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (quotations
omitted). If the evidence is subject to more than one
rational interpretation, one of which supports the
ALJ’s decision, I must affirm. See Morgan v,
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999). I have the authority 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.” 42 U.S.C. § 405(g). I
also may order the Commissioner to collect additional
evidence, “but only upon a showing that there is new
evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a
prior proceeding.” Id.
is entitled to disability benefits under the Social Security
Act if she “(a) suffers from a medically determinable
physical or mental impairment . . . that has lasted or can be
expected to last for a continuous period of not less than
twelve months; and (b) the impairment renders the claimant
incapable of performing the work that [she] previously
performed and incapable of performing any other substantial
gainful employment that exists in the national
economy.” Tackett v. Apfel, 180 F.3d 1094,
1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
If Pedersen demonstrates that she cannot perform her prior
work, the burden shifts to the Commissioner to show that
Pedersen can perform a significant number of other jobs that
exist in the national economy. Hoopai v. Astrue, 499
F.3d 1071, 1074-75 (9th Cir. 2007).
concluded that Pedersen’s mental impairments were not
severe because her medical records did not reveal disabling
limitations. ECF No. 14-1 at 26-29. Instead, the records
revealed a lack of treatment that is “wholly
inconsistent with her allegations of disabling mental
symptoms.” Id. at 28. Magistrate Judge Koppe
concluded that this decision was supported by substantial
evidence because: (1) the medical records support the
ALJ’s conclusion, (2) the ALJ properly gave weight to
the opinions of state agency doctors, and (3) the ALJ
properly found that the medical records contradicted the
opinion of Pedersen’s treating psychiatrist Dr. William
Slagle. ECF No. 22 at 7-9. Pedersen objects, arguing that the
medical records demonstrate that her impairments were severe
and that the ALJ improperly rejected Dr. Slagle’s
opinion of the treating physician is not necessarily
conclusive as to either the physical condition or the
ultimate issue of disability.” Morgan, 169
F.3d at 600. However, the ALJ “must present clear and
convincing reasons for rejecting the uncontroverted opinion
of a claimant’s physician.” Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
gave no weight to Dr. Slagle’s letter because his
“own reports fail to reveal the type of significant
clinical and laboratory abnormalities one would expect if the
claimant were in fact disabled.” ECF No. 14-1 at 28.
Indeed, Dr. Slagle’s notes show Pedersen’s
subjective complaints, few clinical findings, and normal
mental status examinations. Id. at 588-590. The
ALJ’s decision to give no weight to Dr. Slagle’s
letter is consistent with Pedersen’s other medical
records showing that her clinical examinations were
unremarkable and that her doctors had ruled out a major
disorder. Id. at 27-28. And the ALJ noted Dr.
Slagle’s opinion that Pedersen was disabled was not
based on the standard applicable in this case, because Dr.
Slagle drafted the letter in support of Pedersen’s
application for an emotional support animal. ECF No. 14-1 at
28. The ALJ gave “clear and convincing” reasons
to discredit Dr. Slagle’s opinion, and his conclusion
that Pedersen’s impairments were not severe was
supported by substantial evidence.
“considered, but granted, [sic] little
probative weight” to Pedersen’s testimony because
her “activities of daily living in conjunction with the
medical evidence demonstrating minimal abnormalities . . .
reflects a significant functional capacity and not an
individual unable to sustain regular and continuing work due
to medically determinable impairments.” ECF No. 14-1 at
34. Magistrate Judge Koppe found that the ALJ’s
decision was supported by substantial evidence. ECF No. 22 at
10-12. Pedersen objects, contending that the ALJ did not
apply the appropriate standard and erroneously found that her
statements were inconsistent with her medical records. ECF
No. 23 at 6-9.
claimant’s statements as to pain or other symptoms
cannot, alone, be conclusive evidence of disability. 42
U.S.C. § 423(d)(5)(A). The ALJ must engage in a two-step
analysis to determine whether a claimant’s testimony
regarding subjective pain or symptoms is credible.
Lingerfelter v. Astrue,504 F.3d 1028, 1035-36 (9th
Cir. 2007). First, the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment which could reasonably be expected to
induce the pain or other symptoms that she has alleged.
Id. Second, “[i]f the claimant meets the first
test and there is no evidence of malingering, the ALJ can
only reject the claimant’s testimony ...