Geer v. Berryhill, No. 2:2016cv00542 - Document 47 (D. Nev. 2019)
Court Description: ORDER denying 33 Motion; ORDER denying 41 Report and Recommendation; ORDER granting 29 Motion to Remand. This case is remanded to the Administrative Law Judge for further proceedings. Signed by Chief Judge Gloria M. Navarro on 3/19/2019.; Case terminated. (Copies have been distributed pursuant to the NEF - JM)
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Geer v. Berryhill Doc. 47 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JAMIA M. GEER, 4 Plaintiff, 5 6 vs. 7 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 8 Defendant. 9 ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:16-cv-00542-GMN-NJK ORDER 10 Pending before the Court is the Motion to Remand, (ECF No. 29), filed by Plaintiff 11 12 Jamia M. Geer (“Plaintiff”)1 and the Cross-Motion to Affirm, (ECF No. 33), filed by Defendant 13 Nancy A. Berryhill2 (“Defendant” or “the Commissioner”). These motions were referred to the 14 Honorable Nancy J. Koppe, United States Magistrate Judge, for a report of findings and 15 recommendations pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). In the Report and 16 Recommendation (“R&R”), (ECF No. 41), Judge Koppe recommended that Plaintiff’s Motion 17 to Remand be denied. Plaintiff filed an Objection, (ECF No. 46), and the Commissioner did 18 not file a response. 19 I. BACKGROUND Plaintiff brings this action against Defendant in her capacity as the Commissioner of the 20 21 Social Security Administration, pursuant to the Social Security Act, 42 U.S.C. § 405(g). 22 (Compl., ECF No. 3). Plaintiff seeks judicial review of a final decision of the Commissioner of 23 In light of Plaintiff’s pro se status, the Court has liberally construed her filings, holding her to standards less stringent than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 2 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. 1 24 25 Page 1 of 7 Dockets.Justia.com 1 the Social Security Administration denying her claims for social security disability benefits 2 under Title II of the Social Security Act, 42 U.S.C. §§ 401–403. (Id. ¶ 9). 3 Plaintiff applied for both disability insurance benefits and supplemental security income 4 on July 6, 2010, which were denied initially, upon reconsideration, and after a hearing before 5 an Administrative Law Judge (“ALJ”). (R&R 5:12–27, ECF No. 41). Plaintiff timely requested 6 Appeals Council review of the ALJ’s decision, which was granted on April 15, 2013, and 7 remanded to the ALJ for further proceedings. (Id.). On April 24, 2014, after conducting a 8 second hearing, the ALJ denied Plaintiff’s claim. (Id.). This decision became final after the 9 Appeals Council denied Plaintiff’s request for a second review. (Id.). On March 31, 2016, 10 Plaintiff filed her Complaint in this Court. 11 II. LEGAL STANDARD 12 A. Objections to a Magistrate Judge’s Findings and Recommendations 13 A party may file specific written objections to the findings and recommendations of a 14 United States Magistrate Judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B); 15 D. Nev. Local R. IB 3–2. Upon the filing of such objections, the Court must make a de novo 16 determination of those portions of the Recommendation to which objections are made. Id. The 17 Court may accept, reject, or modify, in whole or in part, the findings or recommendations made 18 by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local R. IB 3-2(b). 19 B. Judicial Review of the Commissioner’s Disability Determinations 20 42 U.S.C. § 405(g) provides for judicial review of the Commissioner’s disability 21 determinations and authorizes district courts to enter “a judgment affirming, modifying, or 22 reversing the decision of the Commissioner of Social Security, with or without remanding the 23 cause for a rehearing.” In undertaking that review, an ALJ’s “disability determination should 24 be upheld unless it contains legal error or is not supported by substantial evidence.” Garrison v. 25 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation omitted). “Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a Page 2 of 7 1 reasonable person might accept as adequate to support a conclusion.” Id. (quoting Lingenfelter 2 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). Under the substantial evidence test, a court must uphold the Commissioner’s findings if 3 4 they are supported by inferences reasonably drawn from the record. Batson v. Comm’r, Soc. 5 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2003). When the evidence supports more than one 6 rational interpretation, the Court must defer to the Commissioner’s interpretation. Burch v. 7 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Consequently, the issue before this Court is not 8 whether the Commissioner could reasonably have reached a different conclusion, but whether 9 substantial evidence supports the final decision. 10 III. DISCUSSION 11 A. Plaintiff’s Credibility 12 Plaintiff argues, inter alia, that the Court should reject the R&R and remand the case 13 because the ALJ failed to articulate legally sufficient reasons for discounting Plaintiff’s 14 testimony. (See Obj. 6:3–10:28, ECF No. 46). In assessing the credibility of a claimant’s 15 testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two- 16 step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must 17 determine whether there is “objective medical evidence of an underlying impairment which 18 could reasonably be expected to produce the pain or other symptoms alleged.” Id. (quoting 19 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant has presented such 20 evidence, and there is no evidence of malingering, then the ALJ must give “specific, clear and 21 convincing reasons” in order to reject the claimant’s testimony about the severity of the 22 symptoms. Id. (quoting Lingenfelter, 504 F.3d at 1036). 23 In this case, the ALJ found that Plaintiff’s “medically determinable impairment could 24 reasonably be expected to cause some of the alleged symptoms. . ..” (A.R. at 22, ECF No. 14). 25 The ALJ then found that “the claimant’s statements concerning the intensity, persistence and Page 3 of 7 1 limiting effects of these symptoms are not entirely credible. . ..” (A.R. at 22). The question, 2 therefore, turns on whether the ALJ provided specific, clear and convincing reasons sufficient 3 to meet the second prong of the analysis. 4 In assessing Plaintiff’s credibility, the ALJ found that Plaintiff’s testimony regarding her 5 limitations was inconsistent with her daily living activities. (Id. at 25). The ALJ based this 6 finding exclusively on Plaintiff’s online schooling records. (Id.). Specifically, the ALJ took 7 issue with Plaintiff’s testimony that she only spent up to an hour and a half a day on course 8 work as a full-time student. (Id.). According to the ALJ, “[i]t defies logic and experience that 9 coursework at an accredited State university could be completed with such little effort as the 10 claimant would have me believe.” (Id.). Furthermore, the ALJ found Plaintiff’s testimony 11 inconsistent with her computer logs, which “show that the claimant often stays logged on for 12 more than an hour at a time.” (Id.). 13 In general, an ALJ may consider a claimant’s daily activities in determining credibility. 14 See 20 C.F.R. §§ 404.1529(a), (c)(3)(i) (activities of daily living are relevant to the credibility 15 determination); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). However, 16 the “mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, 17 driving a car, or limited walking for exercise, does not in any way detract from her credibility 18 as to her overall disability.” See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 1991). For 19 example, a plaintiff may choose to engage in daily activities despite pain, but that does not 20 necessarily mean she could concentrate on work despite the pain or else engage in similar 21 activities for a longer period of time. Id. 22 Here, the ALJ did not provide any nexus between Plaintiff’s online schooling and her 23 alleged pain or inability to perform work. Rather, the ALJ discredited Plaintiff solely based on 24 the purported inconsistency between the amount of time Plaintiff spent at the computer and the 25 amount of time required for full-time schooling. (A.R. at 24). At her hearings, Plaintiff Page 4 of 7 1 provided multiple explanations regarding the nature of her courses and her methods for dealing 2 with alleged pain while sitting at her computer. (A.R. 41–42, 70–72, 418–485). To the extent 3 the ALJ still found Plaintiff’s online schooling inconsistent with Plaintiff’s subjective 4 representations regarding her functional limitations, the ALJ failed to provide specific, clear 5 and convincing reasons to support such a finding. See Vasquez, 572 F.3d at 591; See also Orn 6 v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (stating that the ALJ must make specific findings 7 relating to the daily activities and their transferability to a work setting in concluding that a 8 claimant’s daily activities warrant an adverse credibility determination). 9 In the R&R, Judge Koppe reached this same conclusion but found the error harmless. 10 (See R&R 16:5–8). Specifically, Judge Koppe found that the ALJ provided sufficient 11 additional reasons for discrediting Plaintiff, including three instances where the ALJ’s Order 12 identifies inconsistencies in Plaintiff’s testimony and the objective medical evidence. (Id. 16:9– 13 17:5). Upon review, however, the Court does not find these reasons sufficient to discredit 14 Plaintiff’s testimony. 15 First, although the ALJ superficially discusses the discrepancies between Plaintiff’s 16 testimony and the medical evidence, the ALJ fails to clearly articulate the reasons for finding 17 Plaintiff’s specific testimony non-credible. See Vasquez v. Astrue, 572 F.3d at 591. Rather, the 18 ALJ merely asserts that Plaintiff’s testimony is “not entirely credible” based on “the reasons 19 explained in [the] decision.” (A.R. 22). The Ninth Circuit has stated that “a summary of 20 medical evidence in support of a residual functional capacity finding is not the same as 21 providing clear and convincing reasons for finding the claimant’s symptom testimony not 22 credible.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). By failing to clearly 23 link Plaintiff’s testimony to the objective medical findings, the Court can only speculate as to 24 what testimony the ALJ is finding “credible” or “non-credible,” and the weight the ALJ is 25 Page 5 of 7 1 assigning that testimony.3 See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) 2 (“[E]ven if the ALJ had given facially legitimate reasons for his partial adverse credibility 3 finding, the complete lack of meaningful explanation gives this court nothing with which to 4 assess its legitimacy.”). Moreover, even to the extent the ALJ had sufficiently linked Plaintiff’s 5 testimony to the medical record, inconsistencies between subjective representations and the 6 objective medical evidence cannot be the sole basis for discrediting a Plaintiff. See Smolen, 80 7 F.3d at 1279. The Court therefore finds that the ALJ failed to articulate legally sufficient 8 reasons for discrediting Plaintiff’s testimony. 9 B. Remand 10 Having found that the ALJ failed to provide a sufficient credibility analysis, the Court 11 must decide whether this case should be remanded for an award of disability benefits or for 12 further proceedings on the issue of disability. In answering this question, the court must 13 consider: (1) whether the record has been fully developed such that further administrative 14 proceedings would serve no useful purpose; (2) whether the ALJ failed to provide legally 15 sufficient reasons for rejecting the claimant testimony or medical opinion; and (3) whether, if 16 improperly discredited evidence were credited as true, the ALJ would be required to find the 17 claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); See 18 also Varney v. Sec'y of Health and Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). 19 Generally, when all three conditions are met the court must remand for an award of 20 benefits. Garrison, 759 F.3d 1020–21. If, however, an evaluation of the record as a whole 21 22 23 3 24 25 The Court notes that the ALJ arguably meets this standard with respect to Plaintiff’s testimony regarding headaches, stating “while she testified that she experiences 2-3 migraines a week, lasting 72 hours each, the objective medical record documents only sporadic reports of migraines or headache symptoms.” (A.R. 23). The remainder of the ALJ’s analysis, however, only tenuously links discrepancies in Plaintiff’s testimony and the objective medical findings. The Court does not find the ALJ’s analysis on Plaintiff’s headaches alone a “convincing” reason to discredit Plaintiff’s testimony in general. Page 6 of 7 1 “creates serious doubt as to whether the claimant is, in fact, disabled, then remand for further 2 proceedings is proper. Id. 3 Here, based on the record as a whole, the Court finds that serious doubts remain as to 4 whether Plaintiff was disabled within the meaning of the Social Security Act. Notably, the 5 objective medical record contains significant evidence contradicting Plaintiff’s allegations of 6 disability. (See A.R. 22–26). Nonetheless, with respect to the ALJ’s credibility determination, 7 the Court finds that further clarification is necessary before a district court can engage in a 8 meaningful review. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). Accordingly, 9 the Court remands this case for further proceedings consistent with the foregoing. 10 11 12 13 IV. CONCLUSION IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 41), is DENIED. IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand, (ECF No. 29), is 14 GRANTED consistent with the foregoing, and Defendant’s Cross-Motion to Affirm, (ECF No. 15 33), is DENIED. 16 17 IT IS FURTHER ORDERED that this case is remanded to the Administrative Law Judge for further proceedings. 18 The Clerk of Court is instructed to close the case. 19 19 day of March, 2019. DATED this _____ 20 21 22 ___________________________________ Gloria M. Navarro, Chief Judge United States District Judge 23 24 25 Page 7 of 7
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