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Garang v. Berryhill

United States District Court, D. Arizona

May 6, 2019

Yak O. Garang, Plaintiff,
v.
Nancy A. Berryhill, Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         PROCEDURAL HISTORY

         Garang 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.)

         FACTUAL HISTORY

         Garang 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.)

         The ALJ 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.)

         STANDARD OF REVIEW

         The 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), 416.920(a)(4).

         “The 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).

         DISCUSSION

         Garang 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.

         Credibility

         Garang 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).

         Initially, “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 1036).

         In an 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 ...


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