United States District Court, D. Nevada
NICOLE P. VEATER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
REPORT AND RECOMMENDATION MOTIONTO REMAND [ECF NO.
18]; CROSS-MOTIONTO AFFIRM [ECF NO. 21]
FERENBACH UNITED STATES MAGISTRATE JUDGE
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.
Standard of Review
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).
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).
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 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
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).
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).
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).
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
Discounting the Medical Opinions
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).
[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 ...