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Friend v. Berryhill

United States District Court, D. Nevada

July 2, 2018

PATRICIA A. FRIEND, Plaintiff,
v.
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.

         I. SUMMARY

         Before 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[1] Defendant filed (ECF Nos. 11, 11-1). The Court accepts the R&R and grants Defendant's Cross-Motion.

         II. RELEVANT BACKGROUND

         Plaintiff 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, 131-133).

         Plaintiff 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).

         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. 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 (1985).

         Congress 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).

         Although 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.

         IV. DISCUSSION

         Plaintiff 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.)

         Generally, “[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 omitted).

         Here, 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”). ...


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