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Dutraferea v. Berryhill

United States District Court, D. Nevada

August 20, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.




         Before the Court is Plaintiff Jeannie Dutraferea's Motion for Reversal and Remand, ECF No. 20, and Defendant Nancy A. Berryhill's Cross-Motion to Affirm, ECF No. 23.

         For the reasons discussed below, the Court finds that the ALJ's opinion is not supported by substantial evidence and contains legal error that is not harmless. The Court finds that the credit-as-true rule applies to support a finding of disability. Therefore, the Court grants Plaintiff's motion and remands to Defendant for an award of benefits.


         On March 17, 2013, Plaintiff completed an application for disability insurance benefits alleging disability since June 14, 2012. AR 18. Plaintiff was denied initially on July 29, 2013 and upon administrative reconsideration on January 16, 2014. AR 18. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) and appeared on January 4, 2016. AR 18. In an opinion dated January 14, 2016, ALJ Norman L. Bennett found Plaintiff not disabled. AR 18-26. The Appeals Council denied Plaintiff's request for review on April 24, 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 from her alleged onset date of June 14, 2012 through her date last insured of December 31, 2015. AR 20. At step two, the ALJ found that Plaintiff has the following severe impairments: depressive disorder, anxiety disorder, and status post breast cancer, treated and resolved, with residual pain. AR 20. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal a listed impairment. AR 20-23.

         The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following nonexertional limitations: she is limited to short, superficial contact with supervisors, co-workers, and the general public, and limited to simple, repetitive tasks. AR 23-25. Based on this RFC, the ALJ found at step four that Plaintiff is capable of performing her past relevant work as a flagger. AR 25.


         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 reviewing the assignment of weight and resolution 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, 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.

         The Social Security Act has established a five-step sequential evaluation procedure for determining Social Security disability claims. See 20 C.F.R. § 404.1520(a)(4); Garrison, 759 F.3d at 1010. “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step ...

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