United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court for consideration is a Motion to Remand,
(ECF No. 16), filed by Plaintiff Andrew Korinek
(“Plaintiff”) and the Cross-Motion to Affirm,
(ECF No. 21), filed by Defendant Nancy A.
Berryhill (“Defendant” or “the
Commissioner”). These motions were referred to the
Honorable Nancy J. Koppe, United States Magistrate Judge, for
a report of findings and recommendations pursuant to 28
U.S.C. §§ 636(b)(1)(B) and (C).
6, 2016, Judge Koppe entered the Report and Recommendation
(“R. & R.”), (ECF No. 30), recommending
Plaintiff's Motion to Remand be granted in part and the
Commissioner's Cross-Motion to Affirm be denied. The
Commissioner filed an Objection, (ECF No. 31), to the Report
and Recommendation, on May 19, 2016. Plaintiff filed her
Response to the Objection, (ECF No. 32), on June 2, 2016.
brings this action against Defendant in her capacity as the
Commissioner of the Social Security Administration, pursuant
the Social Security Act, 42 U.S.C. § 405(g). (Compl.,
ECF No. 3). Plaintiff seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration denying her claims for social security
disability benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-403. (Id. ¶ 1).
applied for disability insurance benefits on December 2,
2010, which were denied initially, upon reconsideration, and
after a hearing before an Administrative Law Judge
(“ALJ”) held on April 18, 2011. (Id.
¶ 7). Plaintiff timely requested Appeals Council review
of the ALJ's decision, which was granted on April 5,
2013. (Id. ¶ 8). After a second hearing before
the ALJ, the ALJ again denied Plaintiff's claims on July
29, 2013. (Id. ¶ 9). Plaintiff again requested
Appeals Council review, which was denied on February 11,
2015. (Id. ¶ 10).
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. Local R. IB 3-2. Upon the filing of such objections,
the Court must make a de novo determination of those
portions of the Report to which objections are made.
Id. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local
R. IB 3-2(b).
Commissioner challenges Judge Koppe's finding that the
ALJ did not cite clear and convincing reasons for giving
little weight to the opinion of Plaintiff's treating
physician, Dr. Robert Ingham. The Ninth Circuit has held that
to disregard the uncontradicted opinion of an examining
physician or a treating physician, an ALJ must provide clear
and convincing reasons. Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995). “The ALJ must do more than
offer his conclusions. He must set forth his own
interpretations and explain why they, rather than the
doctors', are correct.” Orn v. Astrue, 495
F.3d 625, 632 (9th Cir. 2007).
the ALJ did not satisfy that standard. As Judge Koppe points
out, “the the ALJ failed to articulate clear and
convincing reasons for rejecting Dr. Ingham's opinion
that Plaintiff was limited to sitting for three hours in each
workday.” (R. & R. 10:12-14, ECF No. 30). No other
physician made any specific finding regarding any sitting
limitations. Nevertheless, the ALJ determined that Plaintiff
was capable of sitting for six hours in a workday, noting
without explanation that “the record as a whole did not
support the limitation found by Dr. Ingham.” (A.R. at
34, 36). The Court agrees with Judge Koppe's conclusion
that this sparse comment falls short of the clear and
convincing standard articulated by the Ninth Circuit. See
Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)
(“[I]t is incumbent on the ALJ to provide detailed,
reasoned, and legitimate rationales for disregarding the
reviewed the Commissioner's objections de novo,
the Court finds no basis on which to reject Judge Koppe's
findings and recommendations. The Court therefore remands
this case for further proceedings consistent with Judge
Koppe's Report and Recommendation. On remand, the ALJ may
either accept Dr. Ingham's opinion regarding
Plaintiff's sitting limitation or articulate sufficient
reasons for rejecting that opinion. See Id. at 422
HEREBY ORDERED that the Report and Recommendation, (ECF No.
30), be ACCEPTED and ADOPTED in full, to the extent that ...