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Anderson v. Berryhill

United States District Court, D. Nevada

June 20, 2019

Kelly J. Anderson, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court is Plaintiff Kelly J. Anderson's Motion for Reversal and/or Remand, ECF No. 13, and Defendant Nancy A. Berryhill's Cross-Motion to Affirm, ECF No. 22.

         For the reasons discussed below, the Court finds that the ALJ's decision is not supported by substantial evidence. The Court grants Plaintiff's Motion for Remand and denies Defendant's Cross-Motion to Affirm.

         II. BACKGROUND

         On January 7, 2014, Plaintiff completed an application for disability insurance benefits alleging disability since December 1, 2008. AR 22. Plaintiff was denied initially on February 19, 2014 and upon administrative reconsideration on June 19, 2014. AR 22. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on September 9, 2015. AR 22. In an opinion dated October 15, 2015, ALJ Barry H. Jenkins found Plaintiff not disabled. AR 25-32. The Appeals Council denied Plaintiff's request for review on February 27, 2017, rendering the ALJ's decision final. AR 1-4.

         The ALJ followed the five-step sequential evaluation process for determining Social Security disability claims set forth at 20 C.F.R. § 404.1520(a)(4). At step one, that ALJ found that Plaintiff has not engaged in substantial gainful activity during the period from his alleged onset date (December 1, 2008) through his date last insured (December 31, 2012). AR 24. At step two, the ALJ found that Plaintiff has the following severe impairments: disorder of the lumbar spine with peripheral neuropathy, obesity, bipolar disorder, anxiety, and depression. AR 24. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal a listed impairment. AR 24-25.

         The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R. § 404.1567(b), except that he can occasionally perform all postural activities (e.g. climb ramps or stairs, kneel, balance, bend, stoop, crouch, or crawl), but he can never climb ladders, ropes, or scaffolds, and he is limited to simple tasks typical of unskilled occupations with no production rate pace work. AR 26-29. The ALJ found at step four that Plaintiff was unable to perform any past relevant work. AR 29. At step five, the ALJ found that Plaintiff could perform jobs such as ticket taker (D.O.T. #344.667-010), stock checker, (D.O.T. #299.667-014), cashier II (D.O.T. #211.462-010), information clerk (D.O.T. #239.367-018), mail clerk (D.O.T. #209.687-026), routing clerk (D.O.T. #222.687-022), document preparer (D.O.T. #249.587-018), call out operator (D.O.T. #237.367-014), and election clerk (D.O.T. #205.367-030). AR 30-31.

         III. LEGAL STANDARD

         42 U.S.C. § 405(g) provides for judicial review of the Commissioner's disability determinations and authorizes district courts to enter “a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” In undertaking that review, an ALJ's “disability determination should be upheld unless it contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation omitted). “Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)) (quotation marks omitted).

         “If the evidence can reasonably support either affirming or reversing a decision, [a reviewing court] may not substitute [its] judgment for that of the Commissioner.” Lingenfelter, 504 F.3d at 1035. Nevertheless, the Court may not simply affirm by selecting a subset of the evidence supporting the ALJ's conclusion, nor can the Court affirm on a ground on which the ALJ did not rely. Garrison, 759 F.3d at 1009-10. Rather, the Court must “review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion, ” to determine whether that conclusion is supported by substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Id. When determining assigning weight and resolving conflicts in medical testimony, the 9th Circuit distinguishes the opinions of three types of physicians: (1) treating physicians; (2) examining physicians; (3) neither treating nor examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The treating physician's opinion is generally entitled to more weight. Id. If a treating physician's opinion or ultimate conclusion is not contradicted by another physician, “it may be rejected only for ‘clear and convincing' reasons.” Id. However, when the treating physician's opinion is contradicted by another physician, the Commissioner may reject it by “providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. A treating physician's opinion is still owed deference if contradicted and is often “entitled to the greatest weight . . . even when it does not meet the test for controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). Because a treating physician has the greatest opportunity to observe and know the claimant as an individual, the ALJ should rely on the treating physician's opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). However, the ALJ may reject conclusory opinions in the form of a checklist containing no explanations for the conclusions. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         When a treating physician's opinion is not assigned controlling weight, the ALJ considers specific factors in determining the appropriate weight to assign the opinion. Orn, 495 F.3d at 631. The factors include the length of the treatment relationship and frequency of examination; the nature and extent of the treatment relationship; the amount and quality of evidence supporting the medical opinion; the medical opinion's consistency with the record as a whole; the specialty of the physician providing the opinion; and, other factors which support or contradict the opinion. Id.; 10 C.F.R § 404.1527(c). The ALJ must provide a “detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and [make] findings” rather than state mere conclusions for dismissing the opinion of a treating physician. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The ALJ errs when he fails to explicitly reject a medical opinion, fails to provide specific and legitimate reasons for crediting one medical opinion over another, ignores or rejects an opinion by offering boilerplate language, or assigns too little weight to an opinion without explanation for why another opinion is more persuasive. Garrison, 759 F.3d at 1012-13.

         When determining the credibility of a claimant's testimony, the ALJ engages in a two-step analysis. Id. at 1014-15. First, the claimant must have presented objective medical evidence of an underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter, 504 F.3d at 1035-36 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). The claimant does not need to produce evidence of the symptoms alleged or their severity, but she must show the impairments could reasonably cause some degree of the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, the ALJ determines the credibility of the claimant's testimony regarding the severity of her symptoms. Garrison, 759 F.3d at 1014-15. Unless affirmative evidence supports a finding of malingering, the ...


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