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Veater v. Berryhill

United States District Court, D. Nevada

December 17, 2019

NICOLE P. VEATER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          REPORT AND RECOMMENDATION MOTIONTO REMAND [ECF NO. 18]; CROSS-MOTIONTO AFFIRM [ECF NO. 21]

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         This matter involves plaintiff Nicole Veater's request for a remand of the Administrative Law Judge's (“ALJ”) final decision denying her social security benefits. Before the Court are Veater's motion for remand (ECF No. 18) and the Acting Commissioner's cross-motion to affirm and opposition to plaintiff's motion for reversal (ECF Nos. 21 and 22). The Court recommends denying plaintiff's motion to remand and granting the Commissioner's cross-motion.

         I. Standard of Review

         The Fifth Amendment prohibits the government from depriving persons of property without due process of law. U.S. Const. amend. V. Social security plaintiffs have a constitutionally protected property interest in social security benefits. Mathews v. Eldridge, 424 U.S. 319 (1976); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). When the Commissioner of Social Security renders a final decision denying a plaintiff's benefits, the Social Security Act authorizes the District Court to review the Commissioner's decision. See 42 U.S.C. § 405(g); 28 U.S.C. § 636(b) (permitting the District Court to refer matters to a U.S. Magistrate Judge).

         The District Court's review is limited. See Treichler v. Comm'r of SSA, 775 F.3d 1090, 1093 (9thCir. 2014) (“It is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.”) The Court examines the Commissioner's decision to determine whether (1) the Commissioner applied the correct legal standards and (2) the decision is supported by “substantial evidence.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is defined as “more than a mere scintilla” of evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). Under the “substantial evidence” standard, the Commissioner's decision must be upheld if it is supported by enough “evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938) (defining “a mere scintilla” of evidence). If the evidence supports more than one interpretation, the Court must uphold the Commissioner's interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The Commissioner's decision will be upheld if it has any support in the record. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1988) (stating the court may not reweigh evidence, try the case de novo, or overturn the Commissioner's decision if the evidence preponderates against it).

         II. Discussion

         The Administrative Law Judge (“ALJ”) followed the five-step sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. § 404.1520. The ALJ concluded plaintiff had not engaged in substantial gainful activity since the alleged onset date of April 1, 2012. (AR[1] at 17). The ALJ found plaintiff had numerous severe impairments, “having more than a minimal effect on the claimant's ability to do basic work activities.” (Id. at 18). These were: left shoulder pain of an unclear etiology, status post multiple orthopedic surgeries; osteoarthritis of the bilateral hips with avascular necrosis of the left hip, status post left total hip arthroplasty on April 3, 2014; plantar fasciitis with tarsal tunnel syndrome; degenerative disc disease of the cervical and lumbar spine; asthma; irritable bowel syndrome; diabetes mellitus, type II; nephrocalcinosis; obesity; seizure disorder, fibromyalgia; a mood disorder, not otherwise specified (NOS); an anxiety disorder, and a history of alcohol abuse, in reported remission. (Id. at 17).

         The ALJ found plaintiff's impairments, while severe, did not meet or medically equal the severity of a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at 18). The ALJ concluded plaintiff had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with some exceptions. (Id. at 19). The ALJ found that plaintiff must use an assistive device for ambulation on the job and must avoid concentrated or frequent exposure to extreme cold, heat, vibration, pulmonary irritants and hazards. (Id.). The ALJ also found that plaintiff had no limitation in her ability to perform simple repetitive tasks and mildly detailed tasks characteristic of unskilled or semi-skilled tasks. (Id. at 19-20). The ALJ found plaintiff is unable to perform past relevant work (Id. at 27). The ALJ also found that plaintiff meets the insured status requirements of sections 216(i) and 223 of the Social Security Act. (Id. at 17). The ALJ concluded that plaintiff was not under a disability within the meaning of the Social Security Act from April 1, 2012 through the date of the decision on December 28, 2015. (Id. at 29).

         Plaintiff challenges the ALJ's conclusions on two grounds: 1) that the ALJ improperly rejected the opinions of plaintiff's treating doctors; and 2) the ALJ improperly rejected plaintiff's testimony. (ECF No. 18 at 3, 13). Plaintiff argues the ALJ did not properly consider the opinions of examining physicians Dr. Larson, Ph.D. and Dr. Fabella-Hicks, Ph.D. because she did not offer a legitimate conclusion or legally sufficient reason for rejecting the opinions. (Id. at 4-5). Plaintiff argues the ALJ failed to provide clear and convincing findings in support of the ALJ's rejection of plaintiff's testimony. (Id. at 13). Plaintiff also argues that the ALJ improperly rejected the plaintiff's testimony as not credible because it lacks support in the medical evidence. (Id. at 14).

         The Commissioner argues the ALJ's decision is supported by substantial evidence. (ECF. 21 at 1). The Commissioner asserts substantial evidence supports the ALJ's findings, that the ALJ reviewed the record and gave “significant weight” to Dr. Larson's and Dr. Fabella-Hicks's opinions and permissibly rejected the portions beyond the residual functional capacity. (Id. at 4). The Commissioner also argues that the ALJ properly weighed plaintiff's activities and statements regarding her ability to engage in activities, when deciding whether her subjective testimony of disability was consistent with the record evidence. (Id. at 19).

         The Court finds the ALJ applied the correct legal standards and made conclusions supported by substantial evidence when rejecting Dr. Larson's and Dr. Fabella-Hicks's opinions and for discounting the testimony of plaintiff Veater.

         A. Discounting the Medical Opinions

         More weight is given to the opinion of a treating source than the opinion of a doctor who did not treat the plaintiff. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Medical opinions and conclusions of treating physicians are accorded special weight because these physicians are in a unique position to know plaintiffs as individuals, and because the continuity of their dealings with plaintiffs enhances their ability to assess the plaintiffs' problems. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

         “[A]n [ALJ] may disregard medical opinion that is brief, conclusory, and inadequately supported by clinical findings.” Britton v. Colvin, 787 F.3d 1011, 1012 (9th Cir. 2015) (per curiam). Treating physicians' uncontroverted “ultimate conclusions . . . must be given substantial weight; they cannot be disregarded unless clear and convincing reasons for doing ...


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