United States District Court, D. Nevada
MICHAEL R. TYLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Michael R. Tyler's Motion for
Remand/Reversal, ECF No. 19, and Defendant Nancy A.
Berryhill's Cross-Motion to Affirm, ECF No. 20.
reasons discussed below, the Court finds that the ALJ's
opinion contains legal error that is not harmless. Therefore,
the Court grants Plaintiff's motion and remands to
Defendant for further proceedings.
September 3, 2013, Plaintiff completed an application for
disability insurance benefits alleging disability since July
1, 2013. AR 14. Plaintiff was denied initially on February 3,
2014 and upon administrative reconsideration on October 8,
2014. AR 14. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) and appeared on
December 22, 2015. AR 14, 35-75. In an opinion dated February
26, 2016, ALJ Cynthia R. Hoover found Plaintiff not disabled.
AR 14-27. The Appeals Council denied Plaintiff's request
for review on June 29, 2017, rendering the ALJ's decision
final. AR 5-7.
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 since his alleged onset date of July 1, 2013. AR 16.
At step two, the ALJ found that Plaintiff has the following
severe impairments: degenerative disc disease of the lumbar
spine, type 2 diabetes mellitus, essential hypertension,
peripheral neuropathy, and a depressive disorder with
anxiety. AR 16. At step three, the ALJ found that
Plaintiff's impairments do not meet or medically equal a
listed impairment. AR 17-19.
found that Plaintiff has the residual functional capacity
(“RFC”) to perform light work as defined in 20
CFR 404.1567(b) except Plaintiff can lift and carry 20 pounds
occasionally and 10 pounds frequently; can stand and walk 4
hours and sit 6 hours in an 8-hour day; can occasionally
climb ramps and stairs, stoop, kneel, crouch and crawl; can
never climb ladders, ropes or scaffolds; and must avoid
concentrated exposure to extreme cold and hazards. AR 20-25.
Based on this RFC, the ALJ found at step four that Plaintiff
is capable of performing his past relevant work as a
substitute teacher. AR 25. In the alternative, the ALJ found
at step five that Plaintiff is capable of performing other
jobs that exist in significant numbers in the national
economy such as office helper (DOT section 239.567-010), mail
clerk (DOT section 209.687-026), and information clerk (DOT
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). The ALJ errs when she 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
five.” Garrison, 759 F.3d at 1011. Here, the
ALJ resolved Plaintiff's claim at step four, though the
ALJ made findings that resolve Plaintiff's claim at step
five in the alternative.