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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RHONDA R. HESS, Case No. 2:18-cv-02431-DJA 7 Plaintiff, 8 ORDER v. 9 NANCY A. BERRYHILL1, Commissioner of 10 Social Security,

11 Defendant.

12 13 This matter involves the review of an administrative action by the Commissioner of Social 14 Security (“Commissioner”) denying Plaintiff Rhonda R. Hess’ (“Plaintiff”) application for 15 disability insurance benefits under Title II of the Social Security Act. The Court has reviewed 16 Plaintiff’s Motion for Reversal or to Remand (ECF No. 11), filed on April 12, 2019, and the 17 Commissioner’s Response and Cross-Motion to Affirm (ECF Nos. 16-17), filed on July 16, 2019. 18 Plaintiff filed a Reply (ECF No. 18) on August 6, 2019. 19 I. BACKGROUND 20 1. Procedural History 21 On March 9, 2015, Plaintiff protectively applied for disability insurance benefits, alleging 22 an onset date of November 5, 2014. AR2 173. Plaintiff’s claim was denied initially, and on 23 reconsideration. AR 92-5 and 105-110. A hearing was held before an Administrative Law Judge 24 (“ALJ”) on August 31, 2017. AR 32-65. On February 21, 2018, the ALJ issued a decision 25 denying Plaintiff’s claim. AR 14-31. The ALJ’s decision became the Commissioner’s final 26

27 1 Andrew Saul is now the Commissioner of Social Security and substituted as a party. 1 decision when the Appeals Council denied review, on October 31, 2018. AR 1-6. On December 2 27, 2018 Plaintiff commenced this action for judicial review under

(g). (See 3 Compl. (ECF No. 1).) 4 2. The ALJ Decision 5 The ALJ followed the five-step sequential evaluation process set forth in

404.1520. AR 19-27. At step one, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity from the alleged onset date of November 5, 2014 through the date of the decision. 8 AR 19. At step two, the ALJ found that Plaintiff had medically determinable “severe” 9 impairments of irritable bowel syndrome, celiac disease, hypertension, and gastroesophageal 10 reflux disease (GERD) and non-severe impairments of right shoulder pain, tachycardia, 11 hypothyroidism, small hiatal hernia, anxiety, and depression.

. He rated the 12 paragraph B criteria as no limitation, no limitation, mild limitation, and no limitation.

. 13 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 14 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 15 Appendix 1.

. At step four, the ALJ found that Plaintiff has the residual functional 16 capacity to perform a full range of work at all exertional levels with the following nonexertional 17 limitations: occasionally stoop, bend, kneel, crouch, crawl, or climb ramps or stairs but never 18 climb ropes, ladders, or scaffolds; due to irregular bowel movements, need two restroom breaks 19 in addition to the customary morning, afternoon, and lunch breaks during an eight-hour work day. 20

The ALJ found that Plaintiff is capable of performing her past relevant work as a valet 21 attendant and parking lot attendant supervisor as the positions are actually and normally 22 performed.

. This work does not require the performance of work-related activities 23 precluded by the claimant’s RFC.

Accordingly, the ALJ concluded that Plaintiff was not 24 under a disability at any time from November 5, 2014, through the date of the decision.

. 25 II. DISCUSSION 26 1. Standard of Review 27 Administrative decisions in social security disability benefits cases are reviewed under 42 1 states: “Any individual, after any final decision of the Commissioner of Social Security made 2 after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a 3 review of such decision by a civil action . . . brought in the district court of the United States for 4 the judicial district in which the plaintiff resides.” The court may enter “upon the pleadings and 5 transcripts of the record, a judgment affirming, modifying, or reversing the decision of the 6 Commissioner of Social Security, with or without remanding the cause for a rehearing.”

The 7 Ninth Circuit reviews a decision affirming, modifying, or reversing a decision of the 8 Commissioner de novo. See Batson v. Comm’r,

(9th Cir. 2004). 9 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 10 See

(g); Ukolov v. Barnhart,

(9th Cir. 2005). However, the 11 Commissioner’s findings may be set aside if they are based on legal error or not supported by 12 substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin.,

(9th Cir. 13 2006); Thomas v. Barnhart,

(9th Cir. 2002). The Ninth Circuit defines 14 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 15 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 16 Andrews v. Shalala,

(9th Cir. 1995); see also Bayliss v. Barnhart,

, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 18 supported by substantial evidence, the court “must review the administrative record as a whole, 19 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 20 conclusion.” Reddick v. Chater,

(9th Cir. 1998); see also Smolen v. Chater, 80

(9th Cir. 1996). 22 Under the substantial evidence test, findings must be upheld if supported by inferences 23 reasonably drawn from the record. Batson,

. When the evidence will support 24 more than one rational interpretation, the court must defer to the Commissioner’s interpretation. 25 See Burch v. Barnhart,

(9th Cir. 2005); Flaten v. Sec’y of Health and Human 26 Serv.,

(9th Cir. 1995). Consequently, the issue before the court is not whether 27 the Commissioner could reasonably have reached a different conclusion, but whether the final 1 findings so that the court does not speculate as to the basis of the findings when determining if the 2 Commissioner’s decision is supported by substantial evidence. Mere cursory findings of fact 3 without explicit statements as to what portions of the evidence were accepted or rejected are not 4 sufficient. Lewin v. Schweiker,

(9th Cir. 1981). The ALJ’s findings “should 5 be as comprehensive and analytical as feasible, and where appropriate, should include a statement 6 of subordinate factual foundations on which the ultimate factual conclusions are based.”

7 2. Disability Evaluation Process 8 The individual seeking disability benefits has the initial burden of proving disability. 9 Roberts v. Shalala,

(9th Cir 1995). To meet this burden, the individual must 10 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 11 determinable physical or mental impairment which can be expected . . . to last for a continuous 12 period of not less than 12 months.”

(d)(1)(A). More specifically, the individual 13 must provide “specific medical evidence” in support of her claim for disability.

404.1514. If the individual establishes an inability to perform her prior work, then the burden 15 shifts to the Commissioner to show that the individual can perform other substantial gainful work 16 that exists in the national economy. Reddick,

. 17 The ALJ follows a five-step sequential evaluation process in determining whether an 18 individual is disabled. See

; Bowen v. Yuckert,

(1987). If 19 at any step the ALJ determines that he can make a finding of disability or nondisability, a 20 determination will be made and no further evaluation is required. See

404.1520(a)(4); Barnhart v. Thomas,

(2003). Step one requires the ALJ to 22 determine whether the individual is engaged in substantial gainful activity (“SGA”).

404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves 24 doing significant physical or mental activities usually for pay or profit.

§ 404.1572(a)-(b). If 25 the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not 26 engaged in SGA, then the analysis proceeds to the step two. Step two addresses whether the 27 individual has a medically determinable impairment that is severe or a combination of 1 404.1520(c). An impairment or combination of impairments is not severe when medical and 2 other evidence establishes only a slight abnormality or a combination of slight abnormalities that 3 would have no more than a minimal effect on the individual’s ability to work. Id. § 404.1521; see 4 also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.3 If the individual does not have a 5 severe medically determinable impairment or combination of impairments, then a finding of not 6 disabled is made. If the individual has a severe medically determinable impairment or 7 combination of impairments, then the analysis proceeds to step three. 8 Step three requires the ALJ to determine whether the individual’s impairments or 9 combination of impairments meet or medically equal the criteria of an impairment listed in 20 10 C.F.R. Part 404, Subpart P, Appendix 1.

(d), 404.1525, and 404.1526. If 11 the individual’s impairment or combination of impairments meet or equal the criteria of a listing 12 and the duration requirement (

), then a finding of disabled is made. 20

(h). If the individual’s impairment or combination of impairments does not 14 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 15 to step four. 16 Before moving to step four, however, the ALJ must first determine the individual’s 17 residual functional capacity (“RFC”), which is a function-by-function assessment of the 18 individual’s ability to do physical and mental work-related activities on a sustained basis despite 19 limitations from impairments. See

(e); see also SSR 96-8p. In making this 20 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 21 which the symptoms can reasonably be accepted as consistent with the objective medical 22 evidence and other evidence.

; see also SSRs 96-4p and 16-3p. To the 23 extent that statements about the intensity, persistence, or functionally limiting effects of pain or 24 other symptoms are not substantiated by objective medical evidence, the ALJ must evaluate the 25

26 3 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. 27 Comm’r of Soc. Sec. Admin.,

(9th Cir. 2009); see also

(b)(1). They are entitled to some deference as long as they are consistent with the Social Security Act and 1 individual’s statements based on a consideration of the entire case record. The ALJ must also 2 consider opinion evidence in accordance with the requirements of

and 3 SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 4 Step four requires the ALJ to determine whether the individual has the RFC to perform 5 her past relevant work (“PRW”).

(f). PRW means work performed either 6 as the individual actually performed it or as it is generally performed in the national economy 7 within the last 15 years or 15 years before the date that disability must be established. In 8 addition, the work must have lasted long enough for the individual to learn the job and performed 9 at SGA.

(b) and 404.1565. If the individual has the RFC to perform her 10 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 11 or does not have any PRW, then the analysis proceeds to step five. 12 The fifth and final step requires the ALJ to determine whether the individual is able to do 13 any other work considering her RFC, age, education, and work experience.

404.1520(g). If she is able to do other work, then a finding of not disabled is made. Although the 15 individual generally continues to have the burden of proving disability at this step, a limited 16 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 17 responsible for providing evidence that demonstrates that other work exists in significant numbers 18 in the national economy that the individual can do. Yuckert,

. 19 3. Analysis 20 a. Whether the ALJ Properly Considered Plaintiff’s Subjective 21 Testimony 22 Plaintiff contends that the ALJ found no evidence of malingering so he was required to 23 cite clear and convincing reasons for rejecting Plaintiff’s pain and limitation testimony, which he 24 failed to do. (ECF No. 11, 11). She claims that the ALJ’s summary of the medical evidence is 25 not sufficient grounds to reject her testimony. (Id. at 12-14). Plaintiff also argues that the ALJ 26 erred in rejecting Plaintiff’s testimony based on the conflicting opinion evidence and inconsistent 27 activities of daily living. (Id. at 15-16). She further contends that the ALJ was unclear as to why 1 and limitations. (Id. at 16-17). The Commissioner responds that the ALJ properly found 2 Plaintiff’s testimony not fully supported by the record because he cited to inconsistencies in 3 Plaintiff’s activities of daily living, the objective medical evidence, and the fact that the medical 4 evidence was largely in accord with the assigned RFC. (ECF No. 16, 2-5). Plaintiff replies with 5 the contention that she is entitled to judgment as a matter of law, but adds no further substantive 6 argument. (ECF No. 18). 7 While an ALJ must consider a plaintiff’s representations about her symptoms and 8 limitations, her statements about her “pain or other symptoms will not alone establish that” she is 9 disabled.

(a). In fact, an “ALJ cannot be required to believe every 10 allegation of [disability], or else disability benefits would be available for the asking, a result 11 plainly contrary to [the Act].” Fair v. Bowen,

(9th Cir. 1989). However, 12 absent affirmative evidence that the claimant is malingering, the ALJ’s reasons for rejecting the 13 claimant’s testimony must be clear and convincing. Burrell v. Colvin,

, 1136-37 14 (9th Cir. 2014). Specifically, the ALJ must state why the testimony is unpersuasive and point to 15 what testimony or evidence undermines the claimant’s testimony. See, e.g., Parra v. Astrue, 481

(9th Cir. 2007) (upholding ALJ’s credibility determination when he pointed out 17 numerous lab results that contradicted his subjective complaints); see also Robbins v. Social Sec. 18 Admin.,

(9th Cir. 2006) (ALJ required to provide a “narrative discussion” 19 and state specific evidence in the record supporting an adverse credibility finding). 20 The ALJ “may not reject a claimant’s subjective complaints based solely on a lack of 21 medical evidence to fully corroborate the alleged severity of pain.” Burch,

. This 22 is because the lack of an objective medical basis is just one factor in evaluating the credibility of a 23 claimant’s testimony and complaints. See Bunnell v. Sullivan,

(9th Cir. 1991) 24 (en banc). Moreover, the Court notes that SSR 16-3 clarified that ALJ no longer has to make 25 credibility findings, but rather, evaluate the extent to which the alleged functional limitations and 26 restrictions due to pain and other symptoms are consistent with the other evidence. If “evidence 27 can support either affirming or reversing the ALJ’s decision,” the Court may not substitute its 1 Here, the ALJ considered the contrary objective medical evidence to Plaintiff’s subjective 2 claims. He noted her treatment notes indicated she stopped taking her diet pills, had a special 3 diet, and reported less abdominal pain and bloating as of March 2016. AR 24. Further, the ALJ 4 underscored that her examination in January of 2017 and more recent treatment notes in May 5 2017 were normal. AR 25. Thus, the medical treatment in the record conflict with Plaintiff’s 6 claim of disabling level pain and symptoms. See Celaya v. Halter,

(9th Cir. 7 2003) (pain complaints properly rejected where the ALJ “reasonably noted” evidence that pain 8 had come under control). Also, the consultative examination showed tenderness in her abdomen, 9 but Plaintiff was able to sit and rise without difficulty and walk with normal gait, which led the 10 consultative examiner to assess her with no exertional limitations.

As such, the medical 11 opinion evidence supports the ALJ’s finding that Plaintiff’s testimony is inconsistent with the 12 overall record. See Stubbs-Danielson v. Astrue,

(9th Cir. 2008) (medical 13 source reports support the ALJ’s determination). 14 Moreover, the ALJ highlighted Plaintiff’s inconsistent statements that undermined the 15 credibility of her claims. See Molina v. Astrue,

(9th Cir. 2012) (“ALJ may 16 consider inconsistencies either in the claimant’s testimony or between the testimony and the 17 claimant’s conduct.”); see also Valentine v. Astrue,

(9th Cir. 2009) (ALJ 18 properly found claimant “demonstrated better abilities than he acknowledged in his written 19 statements and testimony”). For example, he highlighted that her allegation that she engages in 20 few social activities is inconsistent with the record that she engaged in a wider range of activities 21 and more social interaction. AR 20-21. After a careful review of the ALJ’s evaluation of 22 Plaintiff’s alleged limitations and pain and other symptoms, the Court finds that he complied with 23 SR 16-3 and the Ninth Circuit standard such that it may not substitute its judgment for that of the 24 ALJ’s. See Burch,

. Therefore, the Court concludes that the ALJ’s decision is 25 supported by substantial evidence and free from reversible legal error. 26 III. CONCLUSION AND ORDER 27 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (ECF No. 1 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm (ECF No. 2 16) is granted. 3 4 DATED: February 6, 2020 5 6 DANIEL J. ALBREGTS 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27