United States District Court, D. Nevada
MARY P. WILEY, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
J. ALBREGTS 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 Mary P. Wiley's (“Plaintiff”)
application for disability insurance benefits under Title II
of the Social Security Act. The Court has reviewed
Plaintiff's Motion for Reversal or to Remand (ECF No.
19), filed September 6, 2018, and the Commissioner's
Response and Cross-Motion to Affirm (ECF Nos 20-21), filed
October 4, 2018. Plaintiff filed a Reply (ECF No. 22) on
October 24, 2018.
November 8, 2013, Plaintiff protectively applied for
disability insurance benefits, alleging an onset date of
August 1, 2010. AR 151-152. Plaintiff's claim was denied
initially, and on reconsideration. AR 60, 77. A hearing was
held before an Administrative Law Judge (“ALJ”)
on June 24, 2016. AR 36-59. On September 2, 2016, the ALJ
issued a decision denying Plaintiff's claim. AR 16-35.
The ALJ's decision became the Commissioner's final
decision when the Appeals Council denied review, on December
29, 2017. AR 1-6. Plaintiff, on February 27, 2018, commenced
this action for judicial review under 42 U.S.C. §§
405(g). (See Motion/Application for Leave to Proceed
in forma pauperis. (ECF No. 1).)
The ALJ Decision
followed the five-step sequential evaluation process set
forth in 20 C.F.R. §§ 404.1520. AR 16-35. At step
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity from the alleged onset date of
August 1, 2010 through her date last insured of December 31,
2015. AR 21. At step two, the ALJ found that Plaintiff had a
medically determinable “severe” impairments of
degenerative disc disease of the lumbar spine, diabetes
mellitus, and obesity along with non-severe impairments of
hypertension, status-post hysterectomy, history of
diverticulitis, ovarian cysts, hyperlipidemia, anxiety, and
depression. Id. at 21-22. He rated the paragraph B
criteria as: no limitation in activities of daily living,
mild limitation in social functioning, mild limitation in
concentration persistence and pace, and no episodes of
decompensation. AR 22-23. 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 C.F.R. Part 404, Subpart P, Appendix 1. AR 24.
four, the ALJ found that Plaintiff has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) except: she can lift 10 pounds
occasionally and 10 pounds frequently; stand and/or walk for
two hours in an eight hour workday; sit for six hours in an
eight hour workday; and cannot climb ladders, ropes or
scaffolds or crawl. AR 25. The ALJ found that Plaintiff is
capable of performing her past relevant work as a bookkeeper
and purchasing clerk as the positions are generally performed
in the economy. This work does not require the performance of
work-related activities precluded by the claimant's RFC.
AR 29. The ALJ did not reach step five. Accordingly, the ALJ
concluded that Plaintiff was not under a disability at any
time from August 1, 2010, through the date last insured of
December 31, 2015. AR 29.
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 his claim for
disability. 20 C.F.R. § 404.1514. If the individual
establishes an inability to perform his prior ...