United States District Court, D. Nevada
PATRICIA A. FRIEND, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING AND ACCEPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE CAM FERENBACH
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Cam Ferenbach (ECF No. 16)
(“R&R” or “Recommendation”)
regarding Plaintiff Patricia A. Friend's Motion for
Reversal and/or Remand (“Motion to Remand”) (ECF
No. 12) and Defendant Acting Commissioner's Cross-Motion
to Affirm and Opposition to Plaintiff's Motion for
Reversal (“Cross-Motion”) (ECF No. 13). Plaintiff
had until June 19, 2018, to file their objections to the
R&R (ECF No. 16). To date, no such objection has been
filed. The Court has reviewed the administrative
record Defendant filed (ECF Nos. 11, 11-1). The
Court accepts the R&R and grants Defendant's
completed an application for disability insurance benefits
and Supplemental Security Income under Titles II and XVI of
the Social Security Act (“Act”). (AR 179-187,
188-191). The application was denied. (AR 119-123.) Plaintiff
requested reconsideration of the denial (AR 125-26), but the
application was again denied upon reconsideration (128-130,
sought and was afforded a hearing wherein she appeared and
testified before an administrative law judge
(“ALJ”). (AR 37, 134-35.) The ALJ issued a
decision, finding Plaintiff is not disabled under applicable
provisions albeit suffering from two severe impairments (AR
14-28). Plaintiff then requested review of the ALJ's
decision before the Appeals Council (“AC”). (AR
13.) The AC denied the request. (AR 1-5.) Plaintiff commenced
the instant action for judicial review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c).
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. Where a party fails to object, however, the
Court is not required to conduct “any review at all . .
. of any issue that is not the subject of an
objection.” Thomas v. Arn, 474 U.S. 140, 149
has limited the scope of judicial review of the
Commissioner's decisions to deny benefits under the 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).
this Court need not undertake de novo review in this
matter, it finds it appropriate to do so in determining
whether to adopt Judge Ferenbach's R&R. Upon
reviewing the R&R, the administrative record, and
underlying briefs, the Court finds good cause to adopt the
R&R in full.
challenged the ALJ's decision to give “little
weight” to the medical opinion of Plaintiff's
treating physician, Dr. Andracki (AR 26), and rejecting her
“pain and symptom testimony” in arriving at his
disability conclusion. (ECF No. 12 at 10-26.)
“[a] treating physician's opinion is entitled to
‘substantial weight.” Bray v. Comm'r of
Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)
(quotation omitted). However, the ALJ need not accept a
treating physician's opinion that is conclusory and
inadequately supported. Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002). The ALJ's decision to reject
controverted medical opinion must be supported by
“‘specific and legitimate reasons supported by
substantial evidence in the record for so doing.”
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)
(quoting Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir. 1983)). “The ALJ can meet this burden by setting
out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989). In determining
whether to deny benefits, an ALJ may also consider
inconsistencies between a doctor's described limitations
and the plaintiff's reported daily activities. See,
e.g., Rollins v. Massanari, 261 F.3d 853, 856
(9th Cir. 2001). Moreover, the onus is on the ALJ to
determine credibility and resolve conflicts in medical
testimony. Magallanes, 881 F.2d at 750 (citation
in explaining his decision regarding Dr. Andracki's
medical opinion, the ALJ noted that Dr. Andracki's
opinion was “conclusory and not supported by his
clinical findings” (AR 26). The ALJ gave the most
weight-“great weight”-to the opinion of a
non-examining physician, Dr. Arnow, whose opinion regarding
the material issue significantly comported with the opinion
of the examining physician, Dr. Mumford (AR 25). See,
e.g., Thomas, 278 F.3d at 957 (supporting that
opinions of non-treating or non-examining physicians
constitute substantial evidence “when the opinions are
consistent with independent clinical findings or other
evidence in the record”). ...