United States District Court, D. Nevada
CAROL D. CARTER, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
ORDER REGARDING REPORT AND RECOMMENDATION OF
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
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 filed by Defendant (ECF Nos. 22,
following reasons, the Court finds good cause to accept and
adopt the R&R in full.
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.)
Commissioner denied Plaintiff's application on January
27, 2012, and again on reconsideration on April 18, 2012. (AR
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.)
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.)
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.”
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
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).)