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Carter v. Berryhill

United States District Court, D. Nevada

November 16, 2017

CAROL D. CARTER, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          ORDER REGARDING REPORT AND RECOMMENDATION OF

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge George Foley, Jr. (ECF No. 35) (“R&R” or “Recommendation”) regarding Plaintiff Carol D. Carter's Motion for Remand/Reversal (“Motion to Remand”) (ECF No. 25) and Defendant Commissioner Nancy A. Berryhill's Cross-Motion to Affirm (“Cross-Motion”) (ECF No. 30). The Court has reviewed Plaintiff's objection to the R&R (ECF No. 36) and Defendant's response (ECF No. 37). The Court has also reviewed the administrative record[1] filed by Defendant (ECF Nos. 22, 24-1).[2]

         For the following reasons, the Court finds good cause to accept and adopt the R&R in full.

         II. BACKGROUND

         Plaintiff filed an application for a period of disability and disability insurance benefits on August 23, 2011. (AR 192-93.) Plaintiff additionally filed an application for social security income on September 27, 2011. (AR 194-202.) Plaintiff stated that back problems, an enlarged heart, high blood pressure, kidney stones, and a torn ligament in her right knee limited her ability to work. (AR 217.)

         The Commissioner denied Plaintiff's application on January 27, 2012, and again on reconsideration on April 18, 2012. (AR 122-26, 128-33.)

         An administrative law judge (“ALJ”) held a hearing on March 26, 2013 (AR 29), and determined that Plaintiff was not disabled in a decision dated April 24, 2013 (AR 23). The Appeals Council denied Plaintiff's request for review. (AR 1.) Plaintiff then filed a Complaint with this Court seeking to set aside the ALJ's decision or remand the case for further hearing. (ECF No. 11 at 4.)

         Prior to the hearing held on March 26, 2013, Plaintiff underwent two comprehensive internal medicine evaluations. The first examination took place with Dr. Sean To at the request of the Department of Social Services, Disability Evaluation Department on April 5, 2008. (ECF No. 35 at 5.) The second examination took place with Dr. David Mumford at the request of the Bureau of Disability Adjudication on January 11, 2012. (Id. at 7.) The two physicians reached inconsistent conclusions, with Dr. To's determinations suggesting that Plaintiff was not physically capable of returning to work as a nurse assistant and Dr. Mumford's determinations suggesting that she was. The ALJ expressly assigned “little weight” to Dr. To's opinion. (AR 21.)

         III. LEGAL STANDARD

         This 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)(C). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” Id.

         Congress has limited the scope of judicial review of the Commissioner's decisions to deny benefits under the Social Security Act. In reviewing findings of fact, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks and citations omitted). The Court must consider the entire record as a whole to determine whether substantial evidence exists, and it must consider evidence that both supports and undermines the ALJ's decision. Id. at 523 (citation omitted). In weighing the evidence and making findings, the Commissioner must also apply the proper legal standards. Id. (citations omitted).

         The Ninth Circuit prescribes additional rules regarding the weight accorded to medical opinions. “In weighing medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the claimant.” Lesley v. Berryhill, No. CV-15-2519-PHX-SMM, 2017 WL 2437368, at *8 (D. Ariz. June 6, 2017). Weight is assigned to the opinions of these physicians in descending order, with the opinions of non-treating physicians receiving the least weight. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). “[T]he opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830. “It is incumbent on the ALJ to make specific findings so that the Court need not speculate as to the findings.” (ECF No. 35 at 13 (citing Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981).)

         IV. ...


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