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Sebeck-Marquez v. Berryhill

United States District Court, D. Nevada

September 28, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Gloria M. Navarro, United States District Judge.

         Pending before the Court are the Motion for Judgment on the Pleadings (“Plaintiff's Motion”), (ECF No. 25), filed by Plaintiff Kathleen J. Sebeck-Marquez (“Plaintiff”), and the Cross-Motion to Affirm, (ECF No. 30), filed by Defendant Nancy A. Berryhill (“Defendant”). These motions were referred to the Honorable George Foley, Jr., United States Magistrate Judge, for a report of findings and recommendations pursuant to 28 U.S.C. §§ 636 (b)(1)(B) and (C). On July 18, 2018, Judge Foley entered the Report and Recommendation (“R&R”), (ECF No. 31), recommending Plaintiff's Motion for Judgement on the Pleadings be denied and Defendant's Cross-Motion to Affirm be granted. Plaintiff filed her Objection to the R&R, (ECF No. 34), on August 1, 2018. Defendant did not file a response.

         I. BACKGROUND

         Pursuant to Title II of the Social Security Act, Plaintiff applied for disability insurance benefits on February 20, 2013, alleging a period of disability from July 1, 2012 to December 31, 2012, resulting from lupus, severe back pain, severe joint pain, fatigue, and depression. (Admin. Record 125, 162). The Social Security Administration denied Plaintiff's claim, (Id. 74-77), as well as her request for reconsideration, (Id. 81-85).

         At Plaintiff's requested hearing before an Administrative Law Judge (“ALJ”) on January 15, 2015, the ALJ applied the five-step sequential evaluation process established by the Social Security Administration to determine whether Plaintiff was disabled.[1] (Id. 12-19). At step two, the ALJ found that Plaintiff had degenerative disc disease and lupus during the relevant period. (Id. 14). At step three, the ALJ concluded that Plaintiff's impairments were not medically equivalent to any condition under 20 CFR Subpt. P. App. 1. (Id. 15). In assessing Plaintiff's residual functional capacity (“RFC”) at the beginning of step four of the analysis, the ALJ determined that Plaintiff's testimony about her disability was not credible. (Id. 16-18). Based on the credibility finding and the medical evidence in the record, at step five of the analysis, the ALJ determined that there were several occupations that Plaintiff could hold in the national economy, and, therefore, Plaintiff was not disabled. (Id. 16-19).

         Following the ALJ's decision, Plaintiff filed a Request for Review, which the Appeals Council denied. (Id. 1-6). Subsequently, Plaintiff filed her Complaint, (ECF No. 1), before this Court seeking a reversal of the ALJ's decision.


         A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the R&R to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).

         A federal court's review of an ALJ's decision on social security disability is limited to determining only (1) whether the ALJ's findings were supported by substantial evidence, and (2) whether the ALJ applied the proper legal standards. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Delorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is “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.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).


         Plaintiff raises two arguments in support of her Objection. First, Plaintiff argues the ALJ failed to properly weigh the medical opinion evidence in the record and therefore improperly determined her RFC. (Obj. 2-8, ECF No. 36). Second, Plaintiff alleges that the ALJ failed to properly evaluate her credibility. (Id. at 8).

         a. Weight of Medical Evidence

         A treating physician's medical opinion about the nature and severity of a claimant's impairments is given controlling weight if it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2). Even if the opinion is not given controlling weight, it is generally “entitled to greater weight than the opinion of a non-examining physician.” Id. See also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The weight given to non-examining physicians' opinions depends on “the degree to which they provide supporting explanations for their medical opinions.” 20 C.F.R. § 404.1527(c)(3). While a physician's opinion about the claimant's impairments is critical, a determination that the impairments rise to the level of a disability is reserved for the ALJ. See 20 C.F.R. § 404.1527(e)(1).

         Plaintiff objects to the ALJ's RFC determination on two grounds. First, she argues the ALJ wrongly disregarded, or at least did not properly weigh, Dr. Tang's 2014 statement that she believed Plaintiff's disability began before the relevant period. (Obj. 3-4, 6-8). Second, Plaintiff contends that her ability to engage in some physical activity when performing daily household ...

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