Korinek v. Colvin

Filing 33

ORDER. IT IS HEREBY ORDERED that 30 the Report and Recommendation be ACCEPTED and ADOPTED in full, to the extent that it is not inconsistent with this Order. IT IS FURTHER ORDERED that 16 Plaintiff's Motion to Remand is GRANTED in part and this case is hereby REMANDED to the Administrative Law Judge. The Clerk of Court shall remand this case back to the Administrative Law Judge and thereafter close this Court's case.IT IS FURTHER ORDERED that 21 the Commissioner's Cross-Motion to Affirm is DENIED. Signed by Chief Judge Gloria M. Navarro on 4/13/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ANDREW KORINEK, 4 Plaintiff, 5 6 vs. 7 NANCY A. BERRYHILL, 8 Defendant. 9 10 ) ) ) ) ) ) ) ) ) ) Case No.: 2:15-cv-00496-GMN-NJK ORDER Pending before the Court for consideration is a Motion to Remand, (ECF No. 16), filed 11 by Plaintiff Andrew Korinek (“Plaintiff”) and the Cross–Motion to Affirm, (ECF No. 21), filed 12 by Defendant Nancy A. Berryhill1 (“Defendant” or “the Commissioner”). These motions were 13 referred to the Honorable Nancy J. Koppe, United States Magistrate Judge, for a report of 14 findings and recommendations pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C). On May 6, 2016, Judge Koppe entered the Report and Recommendation (“R. & R.”), 15 16 (ECF No. 30), recommending Plaintiff’s Motion to Remand be granted in part and the 17 Commissioner’s Cross–Motion to Affirm be denied. The Commissioner filed an Objection, 18 (ECF No. 31), to the Report and Recommendation, on May 19, 2016. Plaintiff filed her 19 Response to the Objection, (ECF No. 32), on June 2, 2016. 20 I. BACKGROUND 21 Plaintiff brings this action against Defendant in her capacity as the Commissioner of the 22 Social Security Administration, pursuant the Social Security Act, 42 U.S.C. § 405(g). (Compl., 23 24 1 25 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. Page 1 of 4 1 ECF No. 3). Plaintiff seeks judicial review of a final decision of the Commissioner of the 2 Social Security Administration denying her claims for social security disability benefits under 3 Title II of the Social Security Act, 42 U.S.C. §§ 401–403. (Id. ¶ 1). 4 Plaintiff applied for disability insurance benefits on December 2, 2010, which were 5 denied initially, upon reconsideration, and after a hearing before an Administrative Law Judge 6 (“ALJ”) held on April 18, 2011. (Id. ¶ 7). Plaintiff timely requested Appeals Council review of 7 the ALJ’s decision, which was granted on April 5, 2013. (Id. ¶ 8). After a second hearing 8 before the ALJ, the ALJ again denied Plaintiff’s claims on July 29, 2013. (Id. ¶ 9). Plaintiff 9 again requested Appeals Council review, which was denied on February 11, 2015. (Id. ¶ 10). 10 II. 11 LEGAL STANDARD A party may file specific written objections to the findings and recommendations of a 12 United States Magistrate Judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B); 13 D. Nev. Local R. IB 3-2. Upon the filing of such objections, the Court must make a de novo 14 determination of those portions of the Report to which objections are made. Id. The Court may 15 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 16 Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local R. IB 3-2(b). 17 III. 18 DISCUSSION The Commissioner challenges Judge Koppe’s finding that the ALJ did not cite clear and 19 convincing reasons for giving little weight to the opinion of Plaintiff’s treating physician, Dr. 20 Robert Ingham. The Ninth Circuit has held that to disregard the uncontradicted opinion of an 21 examining physician or a treating physician, an ALJ must provide clear and convincing 22 reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The ALJ must do more than offer 23 his conclusions. He must set forth his own interpretations and explain why they, rather than the 24 doctors’, are correct.” Orn v. Astrue, 495 F3d 625, 632 (9th Cir. 2007). 25 Page 2 of 4 Here, the ALJ did not satisfy that standard. As Judge Koppe points out, “the the ALJ 1 2 failed to articulate clear and convincing reasons for rejecting Dr. Ingham’s opinion that 3 Plaintiff was limited to sitting for three hours in each workday.” (R. & R. 10:12–14, ECF No. 4 30). No other physician made any specific finding regarding any sitting limitations. 5 Nevertheless, the ALJ determined that Plaintiff was capable of sitting for six hours in a 6 workday, noting without explanation that “the record as a whole did not support the limitation 7 found by Dr. Ingham.” (A.R. at 34, 36). The Court agrees with Judge Koppe’s conclusion that 8 this sparse comment falls short of the clear and convincing standard articulated by the Ninth 9 Circuit. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (“[I]t is incumbent on the ALJ 10 to provide detailed, reasoned, and legitimate rationales for disregarding the physicians’ 11 findings.”). 12 Having reviewed the Commissioner’s objections de novo, the Court finds no basis on 13 which to reject Judge Koppe’s findings and recommendations. The Court therefore remands 14 this case for further proceedings consistent with Judge Koppe’s Report and Recommendation. 15 On remand, the ALJ may either accept Dr. Ingham’s opinion regarding Plaintiff’s sitting 16 limitation or articulate sufficient reasons for rejecting that opinion. See id. at 422 n.3. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// Page 3 of 4 1 2 3 4 IV. CONCLUSION IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 30), be ACCEPTED and ADOPTED in full, to the extent that it is not inconsistent with this Order. IS FURTHER ORDERED that Plaintiff’s Motion to Remand, (ECF No. 16), is 5 GRANTED in part and this case is hereby REMANDED to the Administrative Law Judge. 6 The Clerk of Court shall remand this case back to the Administrative Law Judge and thereafter 7 close this Court’s case. 8 9 10 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm, (ECF No. 21), is DENIED. 13 DATED this _____ day of April, 2017. 11 12 13 ___________________________________ Gloria M. Navarro, Chief Judge United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 of 4

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