United States District Court, D. Arizona
Yak O. Garang, Plaintiff,
Nancy A. Berryhill, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE
Yak Garang brought this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), seeking judicial review
of a final decision by the Commissioner of Social Security
(Commissioner). Plaintiff filed an opening brief, Defendant
responded, and Plaintiff filed a Reply. (Docs. 16, 21, 22.)
Based on the pleadings and the administrative record
submitted to the Court, the Magistrate Judge recommends the
District Court, after its independent review, remand for the
payment of benefits.
filed an application for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) in October 2013.
(Administrative Record (AR) 253.) He alleged disability from
June 15, 2012. (Id.) Garang's application was
denied upon initial review (AR 74-104) and on reconsideration
(AR 105-46). A hearing was held on August 10, 2016 (AR
42-72), after which the ALJ found that Garang was not
disabled because he could perform work available in the
national economy (AR 24-33). After the submission of
additional evidence, the Appeals Council denied Garang's
request to review the ALJ's decision. (AR 1-2.)
was born on April 23, 1976, making him 36 years of age at the
onset date of his alleged disability. (AR 253.) In the past,
Garang worked as a driver and warehouse staff and operated
his own computer business, with earnings below $20, 000 since
he came to the United States as a refugee from South Sudan in
2001. (AR 266, 277.)
found Garang had several severe impairments: diabetes
mellitus, gastrointestinal disorder, PTSD, schizophrenia, and
anxiety-related disorders. (AR 27.) The ALJ determined Garang
had the Residual Functional Capacity (RFC) to perform light
work, semi-skilled but no pace work, with limited workplace
changes, only occasional interactions with co-workers, and no
public interactions. (AR 29.) The ALJ concluded at Step Five,
based on the testimony of a vocational expert (VE), that
Garang could perform work that exists in significant numbers
in the national economy. (AR 32.)
Commissioner employs a five-step sequential process to
evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520;
416.920; see also Heckler v. Campbell, 461 U.S. 458,
460-462 (1983). To establish disability the claimant bears
the burden of showing he (1) is not working; (2) has a severe
physical or mental impairment; (3) the impairment meets or
equals the requirements of a listed impairment; and (4)
claimant's RFC precludes him from performing his past
work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
At Step Five, the burden shifts to the Commissioner to show
that the claimant has the RFC to perform other work that
exists in substantial numbers in the national economy.
Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir.
2007). If the Commissioner conclusively finds the claimant
“disabled” or “not disabled” at any
point in the five-step process, she does not proceed to the
next step. 20 C.F.R. §§ 404.1520(a)(4),
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and for resolving
ambiguities.” Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995) (citing Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
of the Commissioner are meant to be conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The
court may overturn the decision to deny benefits only
“when the ALJ's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole.” Aukland v. Massanari, 257 F.3d 1033,
1035 (9th Cir. 2001). This is so because the ALJ “and
not the reviewing court must resolve conflicts in the
evidence, and if the evidence can support either outcome, the
court may not substitute its judgment for that of the
ALJ.” Matney, 981 F.2d at 1019 (quoting
Richardson v. Perales, 402 U.S. 389, 400 (1971));
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d
1190, 1198 (9th Cir. 2004). The Commissioner's decision,
however, “cannot be affirmed simply by isolating a
specific quantum of supporting evidence.” Sousa v.
Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
1989)). Reviewing courts must consider the evidence that
supports as well as detracts from the Commissioner's
conclusion. Day v. Weinberger, 522 F.2d 1154, 1156
(9th Cir. 1975).
argues the ALJ committed three errors: (1) she failed to
provide clear and convincing reasons for rejecting
Garang's credibility; (2) she accorded little weight to
Garang's treating mental health physician assistant
relying instead upon a non-examiner opinion; and (3) she
erred at Step Five.
argues the ALJ failed to provide clear and convincing reasons
to reject his symptom testimony. In general, “questions
of credibility and resolution of conflicts in the testimony
are functions solely” for the ALJ. Parra v.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting
Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)). However, “[w]hile an ALJ may certainly find
testimony not credible and disregard it . . . [the court]
cannot affirm such a determination unless it is supported by
specific findings and reasoning.” Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006);
Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir.
1995) (requiring specificity to ensure a reviewing court the
ALJ did not arbitrarily reject a claimant's subjective
testimony); SSR 16-3p. “To determine whether a
claimant's testimony regarding subjective pain or
symptoms is credible, an ALJ must engage in a two-step
analysis.” Lingenfelter v. Astrue, 504 F.3d
1028, 1035-36 (9th Cir. 2007).
“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.'”
Id. at 1036 (quoting Bunnell, 947 F.2d at
344). The ALJ found Garang had satisfied part one of the test
by proving an impairment that could produce the symptoms
alleged. (AR 30.) Next, if “there is no affirmative
evidence of malingering, 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.” Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008) (quoting Smolen v.
Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)).
Here, the ALJ did not make a finding of malingering.
Therefore, to support her discounting of Garang's
assertions regarding the severity of his symptoms, the ALJ
had to provide clear and convincing, specific reasons.
See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th
Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at
August 2014 function report, Garang stated that he was too
drowsy to work due to medication and he needed a cane to
ambulate. (AR 306.) He also stated that someone helped him
with meals, chores, and personal care. (AR 307, 308, 309.) He
reported that he did not drive due to medications and he did
no shopping. (AR 309.) His only socializing was weekly
attendance at church. (AR 310.) He reported that he could
only walk one block before resting and he ...