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Whittington v. Berryhill

United States District Court, D. Nevada

April 23, 2018

LIANA RUTH WHITTINGTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (ECF No. 15) (“R&R” or “Recommendation”) regarding Plaintiff Liana Ruth Whittington's Motion for Reversal and/or Remand (“Motion to Remand”) (ECF No. 11) and Defendant Acting Commissioner's Cross-Motion to Affirm (“Cross-Motion”) (ECF No. 12). The Court has reviewed Plaintiff's objection to the R&R (ECF No. 16). Defendant did not file a response. The Court has also reviewed the administrative record[1]filed by Defendant (ECF Nos. 9, 10).[2]

         For the following reasons, the Court rejects the R&R and grants Plaintiff's Motion to Remand.

         II. BACKGROUND

         Plaintiff completed an application for disability insurance benefits under Title II of the Social Security Act, alleging disability beginning February 1, 2007. (AR 148-49.) The application was denied initially and on reconsideration. (AR 99-104, 106-11.)

         Plaintiff requested a hearing before an administrative law judge (ALJ). (AR 113.) ALJ Sara Gilles held a hearing on January 27, 2015. (AR 39-70.) Plaintiff, who was represented by counsel, appeared and testified on her own behalf at the hearing. Testimony was also taken from a vocational expert (“VE”). The ALJ issued a decision finding Plaintiff not disabled on April 13, 2015. (AR 20-35.) Plaintiff requested review, and the Appeals Council denied the request, making the ALJ's decision the final decision of the Commissioner. (AR 1-4, 15-16.)

         Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

         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). “If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In weighing the evidence and making findings, the Commissioner must also apply the proper legal standards. Id. (citations omitted). Courts “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         IV. DISCUSSION

         Plaintiff raises two objections to the Magistrate Judge's R&R. The Court will address these objections in turn.

         A. ...


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