United States District Court, D. Nevada
ORDER ACCEPTING REPORT AND RECOMMENDATION, GRANTING
MOTION TO AFFIRM, AND DENYING MOTION TO REMAND [ECF NOS. 20,
P. GORDON UNITED STATES DISTRICT JUDGE.
Paulina Acuna filed an application for disability insurance
benefits and supplemental security income on March 3, 2013,
alleging disability beginning in August 2006. The Social
Security Administration denied Acuna's application, both
initially and on reconsideration. ALJ Cynthia Hoover held a
hearing on May 18, 2017. On November 13, 2017, ALJ Hoover
issued a decision finding that Acuna was not disabled. The
Appeals Council declined Acuna's request for review,
making the decision the Commissioner's final decision.
Acuna seeks review of that decision, arguing that the ALJ
erred in the evaluation of the medical opinion evidence, in
rejecting her testimony, and in failing to provide an
accurate hypothetical for the vocational expert at the
9, 2019, Magistrate Judge Koppe recommended that I grant the
Commissioner's motion to affirm and deny Acuna's
motion to remand. ECF No. 27. Judge Koppe concluded that the
ALJ properly weighed the medical opinions based on the
information in the record. Id. at 10. Judge Koppe
also concluded that the ALJ's determination that
Acuna's testimony was not entirely consistent with the
medical evidence was supported by substantial evidence.
Id. at 11. Finally, Judge Koppe concluded that the
ALJ properly included Acuna's limitations in the
hypothetical to the vocational expert. Id. at 12.
Acuna objects to Judge Koppe's report and recommendation.
ECF No. 28.
reviewed the record de novo, I agree with Judge Koppe that
the ALJ properly weighed the medical opinions based on
information in the record. Even if the ALJ erred in failing
to include a limitation to simple tasks in Acuna's
residual functional capacity (RFC) assessment, any error
would be harmless because the ALJ identified jobs with
reasoning level two, which the Ninth Circuit has held is
consistent with simple tasks. I also agree with Judge Koppe
that substantial evidence supported the ALJ's opinion to
discount Acuna's testimony and that the hypothetical
given to the vocational expert was proper. Thus, I accept
Judge Koppe's report and recommendation, I deny
Acuna's motion, and I grant the Commissioner's motion
party objects to a magistrate judge's report and
recommendation on a dispositive issue, the district court
must conduct a de novo review of the challenged findings and
recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. §
636(b)(1)(B). The district judge “may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge, ”
“receive further evidence, ” or “recommit
the matter to the magistrate judge with instructions.”
28 U.S.C. § 636(b)(1).
review of an ALJ's decision to deny benefits is limited
to determining whether the ALJ's findings were supported
by substantial evidence and whether the ALJ applied the
appropriate legal standards. Jamerson v. Chafer, 112
F.3d 1064, 1066 (9th Cir. 1997). I may set aside the
ALJ's determination only if it is not supported by
substantial evidence or is based on legal error. Id.
“Substantial evidence means more than a scintilla, but
less than a preponderance;” it is evidence that
“a reasonable person might accept as adequate to
support a conclusion.” Smolet v. Chater, 80
F.3d 1273, 1279 (9th Cir. 1996) (quotations omitted). If the
evidence is subject to more than one rational interpretation,
one of which supports the ALJ's decision, I must affirm.
Morgan v, Comm'r of Soc. Sec. Admin., 169 F.3d
595, 599 (9th Cir. 1999). I have the authority 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.” 42 U.S.C.
§ 405(g). I also may order the Commissioner to collect
additional evidence, “but only upon a showing that
there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into
the record in a prior proceeding.” Id.
is entitled to disability benefits under the Social Security
Act if she “(a) suffers from a medically determinable
physical or mental impairment . . . that has lasted or can be
expected to last for a continuous period of not less than
twelve months; and (b) the impairment renders the claimant
incapable of performing the work that [she] previously
performed and incapable of performing any other substantial
gainful employment that exists in the national
economy.” Tackett v. Apfel, 180 F.3d 1094,
1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
If Acuna demonstrates that she cannot perform her prior work,
the burden shifts to the Commissioner to show that Acuna can
perform a significant number of other jobs that exist in the
national economy. Hoopai v. Astrue, 499 F.3d 1071,
1074-75 (9th Cir. 2007).
has three arguments related to the ALJ's evaluation of
the medical opinion evidence. She argues that the ALJ's
RFC finding did not capture the limitations that Dr. Devera
described in her evaluation because the ALJ limited Acuna to
unskilled work instead of simple tasks. ECF No. 20 at 7-8.
Acuna also argues that the ALJ did not provide clear and
convincing reasons to discount Dr. Devera's conclusion
that, based on her symptoms, Acuna would not be able to work.
Id. at 8. Finally, Acuna argues that the ALJ did not
properly capture in the RFC the limitations that her treating
physician, Dr. Zedek, described. Id. at 8-11. The
Commissioner contends that substantial evidence supported the
ALJ's decision to reject portions of Dr. Devera and Dr.
Zedek's opinions and that the ALJ's RFC finding was
proper based on the medical opinion evidence. ECF No. 21 at
are three types of physicians: “(1) those who treat the
claimant (treating physicians); (2) those who examine but do
not treat the claimant (examining physicians); and (3)those
who neither examine nor treat the claimant [but who review
the claimant's file] (nonexamining [or reviewing]
physicians).” Holohan v. Massanari, 246 F.3d
1195, 1201-02 (9th Cir. 2001) (citations omitted). If a
treating or examining physician's opinion is
uncontradicted, the ALJ may reject it only by offering
“clear and convincing reasons that are supported by
substantial evidence.” Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). “However, the ALJ
need not accept the opinion of any physician, including a
treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.” Bray
v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228
(9th Cir. 2009) (quotation and citation omitted). “If a
treating or examining doctor's opinion is contradicted by
another doctor's opinion, an ALJ may only reject it by
providing specific and legitimate reasons that are supported
by substantial evidence.” Bayliss, 427 F.3d at
1216 (citing Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1995)).
ALJ may reject the testimony of an examining, but
non-treating physician, in favor of a nonexamining,
nontreating physician when he gives specific, legitimate
reasons for doing so, and those reasons are supported by
substantial record evidence.” Roberts v.
Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (citation
omitted). Further, the opinion of a nonexamining physician
may serve as substantial evidence if it is supported by other
independent evidence in the record. Andrews v.
Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
substantial evidence supports the ALJ's decision to
reject Dr. Devera's opinion that Acuna would be unable to
work. The ALJ determined that Dr. Devera's opinion that
Acuna would be unable to work was unsupported by her own
prior statements about Acuna's condition. ECF No. 16-1 at
34. Dr. Devera's prior statements were included in that
same paragraph, such as Acuna's ability to handle one to
two step instructions, mild limitations with more detailed
instructions, moderate limitations with complex instructions,
and some limitations with interaction. Id. The ALJ
found those statements to be consistent with the medical
evidence indicating that Acuna suffered from mild panic
attacks, mood swings, and irritability. Further, nonexamining
doctors and the progress notes provided by Dr. Zedek suggest
that Acuna is able to work despite her limitations. Thus, the
ALJ's decision to give little weight to this portion of
Dr. Devera's opinion was supported by substantial
evidence, including Dr. Devera's own statements, the
opinions of other physicians, and the medical evidence.
Acuna's arguments regarding the ALJ's RFC
determination, I agree with Judge Koppe that in considering
the entire record, the ALJ properly weighed the medical
opinion evidence and came to the proper RFC determination to
limit Acuna to light work and unskilled work with no ...