United States District Court, D. Nevada
KATHLEEN J. SEBECK-MARQUEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
M. Navarro, United States District Judge.
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.
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).
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. (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.
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
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
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.
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).
Weight of Medical Evidence
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. §
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 ...