United States District Court, D. Nevada
HEIDI M. JOHNSON, Plaintiff(s),
NANCY A. BERRYHILL, Defendant(s).
before the court is Magistrate Judge Ferenbach's report
and recommendation (“R&R”) granting
plaintiff's motion for remand, denying the
commissioner's cross-motion to affirm, and remanding the
case. (ECF No. 22). Defendant Andrew Saul (“the
commissioner”) objected to the R&R. (ECF No. 24).
Plaintiff Heidi M. Johnson (“plaintiff”) did not
respond, and the time to do so has passed.
before the court is plaintiff's motion to remand. (ECF
No. 16). The commissioner filed a response (ECF No. 21), to
which plaintiff did not reply.
before the court is the commissioner's cross motion to
affirm. (ECF No. 20). Plaintiff did not respond.
parties do not object to the factual presentation in the
R&R. Therefore, the court adopts the factual
representation in the R&R and will detail factual and
procedural background in the discussion section of this order
as necessary to explain the court's holding.
may file specific written objections to the findings and
recommendations of a United States magistrate judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
LR IB 3-2. Where a party timely objects to a magistrate
judge's report and recommendation, the court is required
to “make a de novo determination of those
portions of the [report and recommendation] to which
objection is made.” 28 U.S.C. § 636(b)(1). The
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
to Local Rule IB 3-2(a), a party may object to the report and
recommendation of a magistrate judge within fourteen (14)
days from the date of service of the findings and
recommendations. Similarly, Local Rule 7-2 provides that a
party must file an opposition to a motion within fourteen
(14) days after service thereof.
sure, as the commissioner argues and Judge Ferenbach
acknowledged, “[w]hen the [a]ppeals [c]ouncil denies a
request for review, it is a non-final agency action not
subject to judicial review because the ALJ's decision
becomes the final decision of the [c]ommissioner.”
Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d
1228, 1231 (9th Cir. 2011) (citing Klemm v. Astrue,
543 F.3d 1139, 1144 (9th Cir. 2008)). But the appeals council
is required to consider “new and material
evidence” submitted to it if “it relates to the
period on or before the date of the administrative law judge
hearing decision.” 20 C.F.R. § 404.970(a)(5). When
the appeals council does not consider the evidence,
“remand to the ALJ is appropriate so that the ALJ can
reconsider its decision in light of the additional
evidence.” Taylor, 659 F.3d at 1233.
a general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not
treat the claimant.” Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996)
(citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.
1987)). “Even if the treating doctor's opinion is
contradicted by another doctor, the [c]ommissioner may not
reject this opinion without providing ‘specific and
legitimate reasons' supported by substantial evidence in
the record for so doing.” Id. (citing
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.
the appeals council was required to consider the evidence to
determine whether “there [was] a reasonable probability
that the additional evidence would change the outcome of the
decision.” 20 C.F.R. § 404.970(a)(5). But the
appeals council refused to consider the evidence, claiming
that the “additional evidence does not relate to the
period at issue.” (ECF No. 15-3 at 3).
commissioner argues that the appeals council's decision
is inoculated from review because “a district court has
no jurisdiction to review any action by the [a]ppeals
[c]ouncil where the ALJ's decision, rather than the
[a]ppeals [c]ouncil's action, is the [c]ommissioner's
final decision.” (ECF No. 24 at 3 (citing Brewes v.
Comm'r of SSA, 682 F.3d 1157, 1161 (9th Cir. 2012);
Taylor, 659 F.3d at 1231)). Thus, the commissioner
contends that Judge Ferenbach “misunderst[ood] the
[c]ourt's role” when he concluded that “[t]he
[a]ppeals [c]ouncil erred when it rejected the evidence from
the plaintiff's treating physicians.” Id.
at 3-4 (quoting ECF No. 22 at 6; citing Luther v.
Berryhill, 891 F.3d 872, 876 (9th Cir. 2018)). The
commissioner further argues that there is no basis for remand
under Taylor because the appeals council's
included plaintiff's additional evidence in the record,
“considered the evidence in question, ” and
“discussed [the evidence] in its notice denying
review.” Id. at 4.
court disagrees. Although the appeals council made
plaintiff's additional evidence part of the record, it
did not “consider” that evidence. (ECF No. 15-3
at 3). This is particularly problematic considering the
weight that should ordinarily be given to a treating
physician's opinion. See Lester, 81 F.3d at 830.
The appeals council did not address the substance of the
treating physicians' opinions, and certainly did not
address the merit of those opinions vis-à-vis the
ALJ's conclusion. Id. The appeals council did
not give “specific and legitimate ...