UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2

3 HOWARD E. BLASINGAME, ) ) 4 Plaintiff, ) Case No.: 2:16-cv-02203-GMN-BNW 5 vs. ) ) 6 ANDREW SAUL1, Acting Commissioner of ) ORDER Social Security, ) 7 ) 8 Defendant. ) ) 9 10 Pending before the Court are the Motion to Reverse or Remand to the Social Security 11 Administration, (ECF No. 18), filed by Plaintiff Howard E. Blasingame (“Plaintiff”), and the 12 Cross-Motion to Affirm, (ECF No. 22), filed by Defendant Carolyn W. Colvin, then Acting 13 Commissioner of the Social Security Administration (the “Commissioner”). The Motions were 14 referred to the Honorable Brenda Weksler, United States Magistrate Judge, for a report of 15 findings and recommendations pursuant to

(b)(1)(B)–(C). 16 On September 24, 2019, Judge Weksler entered the Report and Recommendation 17 (“R&R”), (ECF No. 26), which recommends that Plaintiff’s Motion to Reverse or Remand be 18 granted in part and the Commissioner’s Cross-Motion to Affirm be granted in part and denied 19 in part. The Commissioner filed an Objection to the R&R, (ECF No. 27), and Plaintiff did not 20 file a response. 21 I. BACKGROUND 22 Plaintiff brings this action against the Commissioner pursuant to

(g), 23 seeking judicial review of the Commissioner’s final decision denying Plaintiff’s claim for 24 1 Pursuant to Federal Rule of Civil Procedure 25(d), the current Acting Commissioner of the Social Security 25 Administration, Andrew Saul, has been substituted as Defendant for the previously named Commissioner, Carolyn W. Colvin. 1 social security disability benefits under Title II of the Social Security Act,

, et 2 seq. (See Compl. ¶¶ 3, 9, ECF No. 1). Plaintiff applied for disability benefits on March 14, 3 2012, and his application was denied initially and upon reconsideration. (Admin. R. (“A.R.”) at 4 72, 77, ECF No. 13-1). Plaintiff requested a hearing before an Administrative Law Judge 5 (“ALJ”), who ultimately denied Plaintiff’s benefits claim. (Id. at 23–29). Plaintiff timely 6 requested Appeals Counsel review of the ALJ’s decision, but his request was denied. (Id. at 1–

7 5). Plaintiff then filed his Complaint and Motion to Reverse or Remand, petitioning the Court 8 to review the final decision of the Social Security Administration. (See ECF Nos. 1, 18). 9 II. LEGAL STANDARD 10 A party may file specific written objections to the findings and recommendations of a 11 United States Magistrate Judge made pursuant to Local Rule IB 1-4.

(b)(1)(B); 12 D. Nev. Local R. IB 3-2. Upon the filing of such objections, the court must make a de novo 13 determination of those portions of the recommendation to which objections are made.

The 14 court may accept, reject, or modify, in whole or in part, the findings or recommendations made 15 by the Magistrate Judge.

(b)(1); D. Nev. Local R. IB 3-2(b). 16

(g) provides for judicial review of the Commissioner’s disability 17 determinations and authorizes district courts to enter “a judgment affirming, modifying, or 18 reversing the decision of the Commissioner of Social Security, with or without remanding the 19 cause for a rehearing.” In undertaking that review, an ALJ’s “disability determination should 20 be upheld unless it contains legal error or is not supported by substantial evidence.” Garrison v. 21 Colvin,

(9th Cir. 2014) (citation omitted). Substantial evidence is “more 22 than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 23 mind might accept as adequate to support a conclusion.” Vasquez v. Astrue,

, 591 24 (9th Cir. 2009) (quoting Andrews v. Shalala,

(9th Cir. 1995)). A federal 25 court’s review of an ALJ’s decision on social security disability is limited to determining only 1 (1) whether the ALJ’s findings were supported by substantial evidence, and (2) whether the 2 ALJ applied the proper legal standards. Smolen v. Chater,

(9th Cir. 1996); 3 Delorme v. Sullivan,

(9th Cir. 1991). 4 III. DISCUSSION 5 The R&R recommends remanding Plaintiff’s case to the Social Security Administration 6 for reconsideration of Plaintiff’s residual functional capacity (“RFC”). (R&R 16:4–6, ECF No.

7 26). The R&R explains that the opinion of Plaintiff’s treating physician regarding Plaintiff’s 8 RFC was presented to the Appeals Counsel, but not the ALJ, and the new evidence shows the 9 ALJ’s determination that Plaintiff had the RFC to perform light work was not supported by 10 substantial evidence. (Id. 11:9–13:6). The Commissioner’s Objection argues that the Court 11 should reject the R&R because the new evidence “does not change the fact that substantial 12 evidence supports the ALJ’s decision Plaintiff was not disabled.” (Obj. 2:3–11, ECF No. 27). 13 The Court addresses the Objection below. 14 When an ALJ considers medical sources to determine a disability applicant’s RFC, the 15 treating physician’s opinion is generally entitled to the “greatest weight.” Gardner v. Berryhill, 16

(9th Cir. 2017) (internal quotations omitted) (quoting Tonapetyan v. Halter, 17

(9th Cir. 2001)). However, the ALJ may disregard the treating 18 physician’s opinion if the ALJ sets forth “specific, legitimate reasons for doing so, and this 19 decision must itself be based on substantial evidence.” Rodriguez v. Bowen,

, 762 20 (9th Cir. 1989) (internal quotations omitted) (quoting Cotton v. Bowen,

, 1408 21 (9th Cir. 1986)). Opinions of the treating physician may not be rejected without specific, 22 legitimate reasons “even where those responses were provided on a ‘check-the-box’ form, were 23 not accompanied by comments, and did not indicate to the ALJ the basis for the physician’s 24 answers.” Trevizo v. Berryhill,

, 683 n.4 (9th Cir. 2017). When a district court 25 reviews whether the ALJ’s decision is supported by substantial evidence, the court considers, 1 “the entire record—including any new evidence in the administrative record that the Appeals 2 Council considered—not just evidence before the ALJ.” Gardner,

. Generally, 3 “where the critical portions of a treating physician’s discredited opinion were presented for the 4 first time to the Appeals Council, ‘[t]he appropriate remedy . . . is to remand th[e] case to the 5 ALJ to consider the evidence.”

at 657–58 (internal modifications original) (quoting Harman 6 v. Apfel,

(9th Cir. 2000)).

7 Here, the ALJ concluded that Plaintiff was not disabled because he had the RFC to 8 perform “light work” as defined in

(b), including his past relevant work as 9 a car inspector, title clerk, or office clerk. (A.R. at 29). In reaching her conclusion, the ALJ 10 primarily weighed the testimony of two individuals, Max Carter, Ph.D. (“Carter”), the 11 physician assistant for Plaintiff’s treating physician, Dr. Alexander Imas, M.D. (“Imas”), and a 12 non-examining Stage agency physician, Dr. Navdeep S. Dhaliwal, M.D. (“Dhaliwal”). (Id. at 13 27–28, 347–59). Carter contended, “the claimant was limited to less than a full range of 14 sedentary work.” (Id. at 28). The ALJ did not give Carter’s assessment “any significant 15 weight” upon finding it was not supported by Imas’s progress notes regarding Plaintiff’s 16 recovery. (Id. at 27). The progress notes indicated that Plaintiff’s condition “was either stable 17 or well-controlled on medication.” (Id.) Importantly, the ALJ highlighted that, “[n]otably there 18 is no opinion in the record from an actual treating physician regarding the claimant’s physical 19 capabilities.” (Id.) Explaining that Dhaliwal found Plaintiff could perform some light work, 20 and given the absence of Imas’s opinion in the record, the ALJ “f[ound] [Dhaliwal’s testimony] 21 to be a reasonable assessment of the claimant’s physical capacities, and adopt[ed] it for the 22 purposes of [her] decision.” (Id. at 27–28). 23 Plaintiff attempted to cure the omission of Imas’s opinion before the ALJ by presenting 24 Imas’s check-the-box RFC evaluation to the Appeals Counsel, which indicated that Plaintiff 25 could only perform part-time work based on his marked pain and physical limitations. (Id. at 1 564–65). The Appeals Counsel included the evidence in the record but denied review of the 2 ALJ’s decision. (Id. at 2, 5). Plaintiff argues that Imas’s evaluation warrants reversal of the 3 ALJ’s decision because Imas’s opinion is entitled to greater weight than Dhaliwal’s, and Imas’s 4 evaluation alters how the ALJ should have weighted Carter’s testimony. (Mot. Remand 11:13– 5 21, 13:14–24, ECF No. 18). 6 The Court agrees. Imas’s opinion supports Plaintiff’s contention that he is disabled

7 because the opinion suggests he cannot perform full-time work. (A.R. at 564–65). The new 8 evidence also supports Carter’s testimony explaining Plaintiff’s inability to perform full-time 9 work, which may now receive greater weight because it is supported by the opinion testimony 10 of Plaintiff’s treating physician. (Cf. A.R. at 27) (disregarding Carter’s testimony because it 11 was not corroborated by the evidence from the treating physician). The ALJ’s disability 12 determination relied on the State agency physician’s testimony, which is entitled to lesser 13 weight than that of the treating physician. Gardner,

. Additionally, given that 14 the ALJ did not consider the treating physician’s testimony, she has not yet provided the 15 requisite specific, legitimate reasons for disregarding the testimony. See Rodriguez,

762. 17 The Commissioner argues that the ALJ’s decision remains supported by substantial 18 evidence because Imas’s progress notes indicate that Plaintiff’s condition was stable or well- 19 controlled on medication. (Obj. 3:6–4:4). However, Imas’s RFC evaluation indicates that 20 Plaintiff cannot perform full-time work because he cannot continually stand, sit, and/or walk 21 over the course of an eight-hour workday. (A.R. at 566). Viewed in the context of Imas’s RFC 22 evaluation, the progress notes may have limited probative value because they do not describe 23 Plaintiff’s condition in the context of performing full-time light work. (See id. at 27). Even if 24 the Court credits the Commissioner’s argument that the progress notes are inconsistent with the 25 newly presented evidence, consistency with the record is but one factor among many for the 1 ALJ to consider in determining the weight of a newly presented treating physician’s opinion. 2 See

(c)(2)–(6). Therefore, given that the entirety of the record indicates 3 that the ALJ’s decision was not supported by substantial evidence because conflicting evidence 4 generally entitled to the most substantial weight was not before the ALJ, the appropriate 5 remedy is to remand to the Social Security Administration. Gardner, 856 F.3d at 657–58. 6 IV. CONCLUSION

7 IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 26), is 8 ACCEPTED and ADOPTED to the extent it is not inconsistent with this Order. 9 IT IS FURTHER ORDERED that Plaintiff’s Motion to Reverse or Remand, (ECF No. 10 18), is GRANTED in part. The Court remands this case to the Social Security Administration 11 for rehearing to evaluate evidence submitted to the Appeals Council following the ALJ’s 12 decision. 13 IT IS FURTHER ORDERED the Commissioner’s Cross-Motion to Affirm, (ECF No. 14 22), is GRANTED in part and DENIED in part. The Court affirms the judgment of the 15 Social Security Administration with respect to its evaluation of Plaintiff’s pain and symptom 16 testimony. The Court vacates the Social Security Administration’s judgment that substantial 17 evidence supports the ALJ’s RFC findings. 18 DATED this __8___ day of April, 2020. 19 20 ___________________________________ Gloria M. Navarro, District Judge 21 United States District Court 22 23 24 25