Carter v. Social Security Administration

Filing 38

ORDER accepting and adopting in full ECF No. 35 Report and Recommendation; granting Plaintiff's ECF No. 25 Motion for Remand; denying Defendant's ECF No. 30 Cross-Motion to Affirm; remanding case to ALJ for further proceedings; directing Clerk to enter judgment and close case. Signed by Judge Miranda M. Du on 11/16/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CAROL D. CARTER,
Plaintiff,

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v.
NANCY A. BERRYHILL, Commissioner of
Social Security,

ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
GEORGE FOLEY, JR.

Defendant.

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Case No. 2:14-cv-01825-MMD-GWF

I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge George Foley, Jr. (ECF No. 35) (“R&R” or “Recommendation”) regarding Plaintiff

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Carol D. Carter’s Motion for Remand/Reversal (“Motion to Remand”) (ECF No. 25) and

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Defendant Commissioner Nancy A. Berryhill’s Cross-Motion to Affirm (“Cross-Motion”)

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(ECF No. 30). The Court has reviewed Plaintiff’s objection to the R&R (ECF No. 36) and

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Defendant’s response (ECF No. 37). The Court has also reviewed the administrative

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record1 filed by Defendant (ECF Nos. 22, 24-1).2
For the following reasons, the Court finds good cause to accept and adopt the R&R

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in full.

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II.

BACKGROUND

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Plaintiff filed an application for a period of disability and disability insurance benefits

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on August 23, 2011. (AR 192-93.) Plaintiff additionally filed an application for social

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ease of reference, the Court will cite to the administrative record as AR.
filed both a physical copy of the administrative record (ECF No. 22) and
an electronic copy (ECF No. 24-1).
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security income on September 27, 2011. (AR 194-202.) Plaintiff stated that back problems,

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an enlarged heart, high blood pressure, kidney stones, and a torn ligament in her right

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knee limited her ability to work. (AR 217.)
The Commissioner denied Plaintiff’s application on January 27, 2012, and again on

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reconsideration on April 18, 2012. (AR 122-26, 128-33.)

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An administrative law judge (“ALJ”) held a hearing on March 26, 2013 (AR 29), and

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determined that Plaintiff was not disabled in a decision dated April 24, 2013 (AR 23). The

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Appeals Council denied Plaintiff’s request for review. (AR 1.) Plaintiff then filed a

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Complaint with this Court seeking to set aside the ALJ’s decision or remand the case for

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further hearing. (ECF No. 11 at 4.)

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Prior to the hearing held on March 26, 2013, Plaintiff underwent two comprehensive

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internal medicine evaluations. The first examination took place with Dr. Sean To at the

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request of the Department of Social Services, Disability Evaluation Department on April 5,

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2008. (ECF No. 35 at 5.) The second examination took place with Dr. David Mumford at

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the request of the Bureau of Disability Adjudication on January 11, 2012. (Id. at 7.) The

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two physicians reached inconsistent conclusions, with Dr. To’s determinations suggesting

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that Plaintiff was not physically capable of returning to work as a nurse assistant and Dr.

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Mumford’s determinations suggesting that she was. The ALJ expressly assigned “little

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weight” to Dr. To’s opinion. (AR 21.)

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Where a

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party timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id.

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Congress has limited the scope of judicial review of the Commissioner’s decisions

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to deny benefits under the Social Security Act. In reviewing findings of fact, the Court must

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determine whether the decision of the Commissioner is supported by substantial evidence.
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42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla but less than a

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preponderance; it is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-

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23 (9th Cir. 2014) (internal quotation marks and citations omitted). The Court must

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consider the entire record as a whole to determine whether substantial evidence exists,

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and it must consider evidence that both supports and undermines the ALJ’s decision. Id.

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at 523 (citation omitted). In weighing the evidence and making findings, the Commissioner

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must also apply the proper legal standards. Id. (citations omitted).

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The Ninth Circuit prescribes additional rules regarding the weight accorded to

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medical opinions. “In weighing medical source opinions in Social Security cases, the Ninth

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Circuit distinguishes among three types of physicians: (1) treating physicians, who actually

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treat the claimant; (2) examining physicians, who examine but do not treat the claimant;

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and (3) non-examining physicians, who neither treat nor examine the claimant.” Lesley v.

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Berryhill, No. CV-15-2519-PHX-SMM, 2017 WL 2437368, at *8 (D. Ariz. June 6, 2017).

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Weight is assigned to the opinions of these physicians in descending order, with the

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opinions of non-treating physicians receiving the least weight. Lester v. Chater, 81 F.3d

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821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). “[T]he opinion of an examining

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doctor, even if contradicted by another doctor, can only be rejected for specific and

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legitimate reasons that are supported by substantial evidence in the record.” Lester, 81

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F.3d at 830. “It is incumbent on the ALJ to make specific findings so that the Court need

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not speculate as to the findings.” (ECF No. 35 at 13 (citing Lewin v. Schweiker, 654 F.2d

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631, 635 (9th Cir. 1981).)

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IV.

DISCUSSION

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The Magistrate Judge recommends that Plaintiff’s Motion to Remand be granted

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and that Defendant’s Cross-Motion be denied on the basis that the ALJ failed to provide

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specific and legitimate reasons supported by substantial evidence in the record for

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assigning little weight to the medical opinion of Dr. To. (Id. at 19.) Dr. To’s opinion, if

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accepted, would establish that Plaintiff’s residual functional capacity does not enable her
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to perform her past work as a nurse assistant. (Id.) The burden would then shift to the

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Commissioner to show that the claimant can perform other substantial gainful work that

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exists in the national economy. (Id. at 14 (citing Reddick v. Chater, 157 F.3d 715, 721 (9th

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Cir. 1998).) Defendant objects to the R&R, contending that the ALJ provided specific and

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legitimate reasons supported by substantial evidence in the record. (See ECF No. 36 at

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2.)

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The ALJ expressly assigned little weight to Dr. To’s opinion because “(1) there were

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no objective findings in the record to support the Plaintiff’s allegations; (2) an MRI of the

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lumbar spine revealed minimal findings; (3) an x-ray of the cervical spine showed only

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minimal findings; (4) Plaintiff could perform her activities of daily living with only occasional

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assistance; [and] (5) Plaintiff received only conservative treatment [for her neck and

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back].” (ECF No. 35 at 16 (citing AR 21).)

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A.

ALJ’s First Reason

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The Magistrate Judge found that the first reason the ALJ listed for discounting Dr.

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To’s opinion—lack of objective findings in the record to support the claimant’s

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allegations—constituted “a general and overbroad statement that does not, itself, provide

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a specific or legitimate reason for rejecting the doctor’s opinion.” (Id.) Defendant argues

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that the ALJ’s first reason is sound because “the regulations specifically identify medical

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evidence as a pertinent factor to consider when evaluating a physician’s opinion about a

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claimant’s medical condition.” (ECF No. 36 at 3 (citing 20 C.F.R. § 404.1527(c)(3)).)

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The ALJ’s reason is not legitimate because it does not reflect the evidence in the

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record. In his decision, the ALJ stated that the record lacked objective findings to support

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Plaintiff’s allegations (AR 21) but noted a page later that an x-ray of Plaintiff’s right knee

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showed a “large curvilinear calcification in the medial collateral ligament” (AR 22 (citing

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AR 451)). The ALJ failed to explain how this objective finding did not support Plaintiff’s

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allegation of knee pain.

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B.

ALJ’s Second, Third, And Fifth Reasons

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The Magistrate Judge found that the second, third, and fifth reasons the ALJ offered

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for discounting Dr. To’s opinion—the lack of MRI and x-ray findings related to Plaintiff’s

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lumbar and cervical spine and the conservative treatment Plaintiff received for her neck

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and back—were not specific, legitimate, and supported by substantial evidence. (See ECF

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No. 35 at 16.) The Magistrate Judge stated that those reasons relate “only to Plaintiff’s

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alleged neck and back symptoms, none of which were mentioned in Dr. To’s report, and

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which he obviously did not consider in making his assessment of Plaintiff’s residual

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functional capacity.” (Id.) Defendant argues that Dr. To did in fact consider Plaintiff’s neck

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and back in reaching his determination and that the ALJ can rely on medical evidence to

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discount an examining physician’s opinion. (ECF No. 36 at 3-4.)

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The Court agrees with the Magistrate Judge that these reasons are not legitimate

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reasons for discounting Dr. To’s opinion because they relate to the health only of Plaintiff’s

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neck and back. Dr. To’s determination that Plaintiff could not stand/walk longer than four

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hours was based on her knee problems, not problems with her neck and back. (See AR

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298-302.) Neck and back problems (considered either alone or in combination with

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Plaintiff’s knee impairment) could not have formed the basis of Dr. To’s opinion because

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Dr. To found that Plaintiff’s neck and back were basically healthy. (See AR 300.)

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C.

ALJ’s Fourth Reason

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The Magistrate Judge found that the fourth reason the ALJ offered for assigning Dr.

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To’s opinion little weight—that Plaintiff could perform her activities of daily living with only

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occasional assistance—was not specific, legitimate, and supported by substantial

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evidence. (See ECF No. 35 at 16-17.) The Magistrate Judge found that Plaintiff’s ability to

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perform activities of daily living did not demonstrate that she was capable of performing

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medium work—the exertion level associated with her prior job as a nurse assistant. (Id.)

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Defendant argues that the ALJ is permitted to consider activities of daily living when

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assigning weight to a medical opinion. (ECF No. 36 at 5.) However, the activities of daily

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living that the ALJ considered—helping to care for five children and two grandchildren—
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do not necessitate an inference that Plaintiff can stand or walk for four or more hours at a

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time. For example, Plaintiff explained at the hearing that she must take frequent ten-minute

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breaks while cleaning to sit down. (See AR 9-10.) Moreover, the ALJ did not specifically

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identify which of Plaintiff’s activities of daily living contradict Dr. To’s opinion. (See AR 21.)

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Nor did the ALJ explain how Plaintiff’s activities contradict Dr. To’s opinion. (See id.) Thus,

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the ALJ’s fourth reason for rejecting Dr. To’s opinion was not specific, legitimate, and

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supported by substantial evidence.

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D.

Post Hoc Rationalizations

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Defendant offers a number of facts in the record that could amount to substantial

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evidence for the ALJ’s decision (ECF No. 36 at 2-3), but the Court cannot consider these

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post hoc rationalizations. The Court must review the ALJ’s decision based on the

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reasoning and factual findings offered by the ALJ. Bray v. Comm’r of Soc. Sec. Admin.,

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554 F.3d 1219, 1225 (9th Cir. 2009).

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motions before

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the Court.

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It is therefore ordered, adjudged, and decreed that the Report and

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Recommendation of Magistrate Judge George Foley, Jr. (ECF No. 35) is accepted and

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adopted in full.

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It is further ordered that Plaintiff’s Motion for Remand (ECF No. 25) is granted.

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It is further ordered that Defendant’s Cross-Motion to Affirm (ECF No. 30) is denied.

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This case is remanded to the ALJ for further proceedings consistent with this Order.

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The Clerk is directed to enter judgment and close this case.

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DATED THIS 16th day of November 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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