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Nemeth v. Colvin

United States District Court, Ninth Circuit

October 16, 2013

Steven Nemeth, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Steven Nemeth seeks judicial review of the Commissioner's decision finding him not disabled within the meaning of the Social Security Act. For the reasons that follow, the Court will grant Plaintiff's motion and remand the case for further proceedings.

I. Background.

Plaintiff applied for disability insurance benefits and supplemental security income in January 2008, alleging disability due to multiple conditions beginning in January 2007. Doc. 23 at 2. After a hearing on February 1, 2011, an Administrative Law Judge ("ALJ") issued an opinion finding Plaintiff was not disabled as of December 31, 2010. Id. at 13. That decision was ratified by the Appeals Council and became the Commissioner's final decision.

II. Legal Standard.

Defendant's decision to deny benefits will be vacated "only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Substantial evidence' means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In determining whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to support the Commissioner's determination, the Court cannot substitute its own. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

III. Analysis.

For purposes of Social Security benefits determinations, a disability is:

the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

20 C.F.R. § 404.1505 (2012). Determining whether a claimant is disabled involves a sequential five-step evaluation process. The claimant must show (1) he is not currently engaged in substantial gainful employment, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity ("RFC") precludes him from performing his past work. If at any step the Commissioner determines that the claimant is or is not disabled, the analysis ends; otherwise it proceeds to step five. If the claimant establishes his burden through step four, the Commissioner bears the burden at step five of showing that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v) (2012).

Plaintiff argues that the decision of the ALJ is incorrect on three grounds. First, the ALJ improperly discounted his subjective testimony. Second, the ALJ failed to properly weigh medical opinions. Finally, the ALJ failed to resolve inconsistencies between testimony of a vocational expert and the Dictionary of Occupational Titles and thus failed to meet her burden at step five of the analysis.

A. Plaintiff's Subjective Testimony.

The ALJ must engage in a two-step analysis to evaluate the credibility of a claimant's subjective testimony. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'" Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). If the claimant meets this first test, and there is no evidence of malingering, then the ALJ "can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). The ALJ may consider at least the following factors when weighing the claimant's credibility: the claimant's reputation for truthfulness, inconsistencies either in the claimant's testimony or between his testimony and his conduct, the claimant's daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).

At step one, the ALJ determined that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." AR. at 27.[1] The ALJ concluded at step two, however, that "claimant's statements concerning the intensity, ...


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