United States District Court, D. Nevada
Kelly J. Anderson, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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.
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).
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.
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 ...