United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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 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).
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.
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