Reeves v. Saul

• Decision Date: 06 March 2020
• Docket Number: Case No. 2:18-cv-01174-GMN-EJY
• Parties: GERALD L. REEVES, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Nevada

GERALD L. REEVES, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security,¹ Defendant.

Case No. 2:18-cv-01174-GMN-EJY

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 6, 2020

REPORT AND RECOMMENDATION

Re: Plaintiff's Motion for Summary Judgment and Memorandum in Support Thereof

(ECF Nos. 21 and 22)

Plaintiff Gerald L. Reeves ("Plaintiff") seeks summary judgment in his favor and to reverse or remand the previous administrative decision in which the Commissioner of the Social Security Administration ("Commissioner" or the "Defendant") denied Plaintiff's application for disability insurance ("DIB") and supplemental security income ("SSI") under Sections 216(i), 22, 1161, and 1614 of the Social Security Act. The Court recommends that the Commissioner's decision be remanded to the Social Security Administration consistent with this Report and Recommendation for the reasons stated below.

I. BACKGROUND

On September 15, 2014, Plaintiff filed applications for Title II DIB. On April 6, 2015, Plaintiff filed a Title XVI application for SSI. In both application, Plaintiff claims disability beginning on October 13, 2013. Administrative Record ("AR") 44. The parties do not dispute that, under Title II DIB, Plaintiff's records show he has acquired sufficient quarters of coverage to remain insured through March 31, 2019 under Title II. The Commissioner denied Plaintiff's claims by initial determination on February 23, 2015, and upon reconsideration on July 23, 2015. Id. Plaintiff requested an administrative hearing on July 30, 2015, and the hearing took place before the Administrative Law Judge ("ALJ") on October 27, 2016. Id. The ALJ issued his determination thatPlaintiff was not disabled on February 27, 2017. AR 53. On March 26, 2018 the Appeals Council denied Plaintiff's request to review the ALJ's decision. AR 25-27. This civil action followed.

II. STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner's alleged errors, courts must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

"When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). A reviewing court, however, "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, a court may not reverse an ALJ's decision based on an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

III. DISCUSSION

A. Establishing Disability Under The Act

To establish whether a claimant is disabled under the Act, there must be substantial evidence that:

(a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and(b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). "If a claimant meets both requirements, he or she is disabled." Id.

The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a).² Each step is potentially dispositive and "if a claimant is found to be 'disabled' or 'not-disabled' at any step in the sequence, there is no need to consider subsequent steps." Tackett, 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 1098.

The five steps are:

Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).

Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c).

Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(d).

Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(e).

Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economythat claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert [("VE")], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits. See id.

Id. at 1098-99 (internal alterations omitted).

B. The ALJ's Findings

At step one of the sequential evaluation the ALJ found that Plaintiff did not engage in substantial gainful activity since October 13, 2013, the alleged onset date of disability. AR 46. The second step finding by the ALJ states that Plaintiff "has the following severe combination of impairments: degenerative disc disease of the lumbar spine; degenerative disc disease of the thoracic spine and depressive disorder." Id. The ALJ concluded that these impairments "are more than slight abnormalities and have more than a minimal effect on ... [Plaintiff's] ability to do basic physical or mental work activities when taken in combination." Id.

With respect to this determination, the ALJ stated he considered Plaintiff's severe and nonsevere medically determinable impairments including the degenerative disc disease ("DDD") of the lumbar and thoracic spine and Plaintiff's "reported depressive symptoms." AR 47. Despite the finding of severity of Plaintiff's depressive symptoms, the ALJ incongruously states that "there is minimal objective evidence of the claimant seeing a psychiatrist consistently, being hospitalized for psychiatric treatment, or receiving any consistent specialized psychiatric care. This is inconsistent with the alleged severity of the claimant's mental symptoms and functional limitations. Mental status examination were mostly normal." Id. The ALJ then concludes that "based on the minimal and unremarkable mental health evidence in the record, ... [Plaintiff] had no severe mental impairment." Id. This, again, is inconsistent with the "severity" finding at AR 46. Finally, the ALJ states that "the four broad functional areas set out in the disability regulations for evaluating mental disorders ... known as the 'paragraph B' criteria ... are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluationprocess. ... [A] steps 4 and 5 of the sequential evaluation process ... a more detailed assessment ... of the adult mental disorders listings" is required. Id. Thus, the ALJ's RFC "assessment reflects the degree of limitations ... found in the 'paragraph B' mental function analysis." Id.

At the third step of the sequential evaluation process the ALJ states that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairment" in the Code of Federal Regulation. AR 47. The ALJ concluded that whether considered singularly or in combination, Plaintiff's impairments "do not meet or medically equal the criteria of any medical...