United States District Court, D. Nevada
RUSTY W. BESEAU, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
M. Navarro, Chief Judge United States District Judge.
before the Court is the Motion to Remand, (ECF No. 19), filed
by Plaintiff Rusty W. Beseau (“Plaintiff”) and
the Cross-Motion to Affirm, (ECF No. 24), filed by Defendant
Nancy A. Berryhill (“Defendant” or “the
Commissioner”). These motions were referred to the
Honorable George Foley, United States Magistrate Judge, for a
report of findings and recommendations pursuant to 28 U.S.C.
§§ 636(b)(1)(B) and (C). In the Report and
Recommendation (“R&R”), (ECF No. 26), Judge
Foley recommended that Plaintiff's Motion to Remand be
granted. The Commissioner filed an Objection, (ECF No. 29),
and Plaintiff filed a Response, (ECF No. 30).
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. 1). Plaintiff seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration denying his claims for social security
disability benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-403. (Id. ¶ 9).
applied for both disability insurance benefits and
supplemental security income on July 16, 2011, which were
denied initially, upon reconsideration, and after a hearing
before an Administrative Law Judge (“ALJ”).
(R&R 1:23-2:7, ECF No. 26). Plaintiff timely requested
Appeals Council review of the ALJ's decision, which was
denied on September 25, 2014. (Id.). Plaintiff then
filed his Complaint and the instant Motion in this Court.
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 Foley's finding that the
ALJ failed to provide clear and convincing reasons for
rejecting Plaintiff's credibility. In the absence of
affirmative evidence that the claimant is malingering, the
ALJ's reasons for rejecting the credibility of the
claimant's testimony regarding the severity of his pain
or other symptoms must be specific, clear, and convincing.
See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012). An ALJ is permitted to look at inconsistencies between
a claimant's subjective representations and the objective
medical evidence; however, such inconsistencies cannot be the
sole ground for discrediting a claimant. See Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Rollins
v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). In the
Report and Recommendation, Judge Foley found that the ALJ
“based his credibility determination solely on the lack
of objective medical evidence in the record that would
substantiate Plaintiff's testimony.” (R&R
Commissioner argues that, despite the lack of credibility
analysis in the ALJ opinion, the Magistrate Judge erred by
failing to draw reasonable inferences from the opinion that
support the ALJ's adverse credibility finding.
(See Obj. 5:19-22, ECF No. 29). Specifically, the
Commissioner asserts that “the ALJ's discussion of
the evidence of record as part of the residual functional
capacity (RFC) determination underscores that he provided
multiple legally sufficient reasons for discrediting
Plaintiff's allegations of disabling functional
limitations.” (Id. 2:9-12). The Ninth Circuit
has explicitly rejected this argument, stating that “a
summary of medical evidence in support of a residual
functional capacity finding is not the same as providing
clear and convincing reasons for finding the
claimant's symptom testimony not credible.”
Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir.
the ALJ's credibility analysis merely stated that
Plaintiff's assertions were inconsistent with the RFC
assessment and objective medical record. (A.R. at 26, ECF No.
14). Judge Foley properly noted that such
“boilerplate” credibility findings were
insufficient to meet the “clear and convincing”
standard. See Brown-Hunter, 806 F.3d at 493-94;
Robbins v. Social Sec. Admin., 466 F.3d 880, 884-85
(9th Cir. 2006). Without sufficient detail as to the basis of
the ALJ's credibility finding, the Court cannot engage in
a meaningful review. Accordingly, and having reviewed the
Commissioner's objections de novo, the Court
finds no basis on which to reject Judge Foley's findings
and recommendations. The Court therefore remands this case
for further proceedings consistent with Judge Foley's
Report and Recommendation.
IS HEREBY ORDERED that the Report and
Recommendation, (ECF No. 26), is accepted and adopted in
IS FURTHER ORDERED that Plaintiffs Motion to Remand,
(ECF No. 19), is GRANTED consistent with the
foregoing, and Defendant's ...