1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 JAMES CHRISTOPHER BUTCHER, Case No.2:23-CV-350 JCM (NJK)

8 Plaintiff(s), ORDER 9 v.

10 KILOLO KIJAKAZI,

11 Defendant(s).

12 13 Presently before the court is the plaintiff’s (James Christopher Butcher) motion for reversal 14 and remand of the Social Security Commissioner’s final decision in his case. (ECF No. 16). The 15 defendant, the commissioner of the Social Security Administration (hereinafter, the 16 “Commissioner”), filed a countermotion and response to affirm the decision and deny Butcher’s 17 motion. (ECF Nos. 18, 19). Butcher responded in support of his motion. (ECF No. 21). 18 Also before the court is the magistrate judge’s report and recommendation (“R&R”) 19 denying Butcher’s motion and granting the Commissioner’s countermotion. (ECF No. 22). 20 Butcher filed objections (ECF No. 24), but the Commissioner did not respond. For the reasons set 21 forth below, the court remands the matter back to the magistrate judge. 22 I. Background 23 This is an appeal from the Commissioner’s denial of Social Security disability benefits to 24 Butcher. (ECF No. 10). Butcher asks this court to reverse the Commissioner’s final decision and 25 remand the matter for further administrative proceedings. (ECF No. 16, at 2). The court 26 summarizes the facts provided in the magistrate judge’s R&R as necessary for the resolution of 27 Butcher’s objection. (ECF No. 22). 28 1 Butcher filed for disability insurance benefits under Title II of the Social Security Act in 2 2014, alleging a disability onset date of January 13, 2012. (ECF No. 22, at 2). Butcher’s claim 3 was denied once and then again on reconsideration. (Id. at 2–3). Butcher then requested—and 4 received—a hearing before an administrative law judge (“ALJ”), ALJ Hoover. (Id. at 3). ALJ 5 Hoover found that Butcher was not disabled during the relevant period and issued an unfavorable 6 decision. (Id.). After the Appeals Council remanded the matter back to ALJ Hoover, she again 7 found that Butcher was not disabled. (Id.). 8 Butcher next commenced suit seeking judicial review of ALJ Hoover’s decision, but the 9 matter was remanded after the parties stipulated to a voluntary remand. (Id. at 3). After a hearing 10 on the matter for a third time, ALJ Zeidman found that Butcher was not disabled. (Id.). ALJ 11 Zeidman issued an unfavorable decision on January 4, 2023. (Id.). 12 ALJ Zeidman determined that Butcher did not have sufficiently severe impairments, or a 13 combination of impairments; that Butcher had the “residual function capacity” to perform “light 14 work” as defined in 20 C.F.R. 404.1567(b) with some limitations; and that although Butcher could 15 no longer perform past relevant work, there are still a significant number of jobs that he can 16 perform, based on his age, education, work experience, and residual functional capacity. (Id. at 17 4). Butcher then commenced this action for judicial review of ALJ Zeidman’s decision. (Id.). 18 Butcher moved for a reversal of ALJ Zeidman’s decision, and a remand of the matter for 19 further administrative proceedings with a different ALJ. (ECF No. 16). The Commissioner filed 20 a countermotion to affirm the decision and deny Butcher’s motion. (ECF No. 18). After reviewing 21 the parties’ briefs and the administrative record, the magistrate judge issued a report and 22 recommendation. (ECF No. 22). The magistrate judge found the Commissioner’s decision to be 23 supported by substantial evidence and free from legal error and therefore recommended that 24 Butcher’s motion be denied, and the Commissioner’s motion be granted. (Id. at 8). Butcher 25 objected. (ECF No. 24). 26 II. Legal Standard 27 A party may file specific written objections to the findings and recommendations of a 28 United States magistrate judge made pursuant to Local Rule IB 1-4.

(b)(1)(B); 1 LR IB 3-2. If a party timely objects to a magistrate judge’s report and recommendation, the court 2 must “make a de novo determination of those portions of the [report and recommendation] to which 3 objection is made.”

(b)(1).1 The court “may accept, reject, or modify, in whole 4 or in part, the findings or recommendations made by the magistrate.”

“The district judge may 5 also receive further evidence or remand the matter to the magistrate judge with instructions.” LR 6 IB 3-2(b). 7 Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of 8 a magistrate judge within fourteen (14) days from the date of service of the findings and 9 recommendations. A party making objections must support those objections with points and 10 authorities. LR IB 3-2(a). Any responses to objections must be filed and served fourteen (14) 11 days after service of the objection. (Id.). 12 III. Discussion 13 This court may “set aside the Commissioner’s denial of benefits when the ALJ’s findings 14 are based on legal error or are not supported by substantial evidence in the record as a whole.” 15 Schneider v. Commissioner of the SSA,

(9th Cir. 2000). “Substantial evidence 16 means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala,

1035, 1039 (9th Cir. 1995). “The ALJ is responsible for determining credibility, resolving 19 conflicts in medical testimony, and for resolving ambiguities.”

“[W]here the evidence is 20 susceptible to more than one rational interpretation,” the ALJ's decision must be affirmed.

at 21 1039-40. 22 Butcher challenged the Commissioner’s decision on two grounds. The first is that the ALJ 23 did not adequately address the alleged flare-ups caused by his medical conditions and how they 24 affect his ability to maintain work, rather than merely obtain work. (ECF No. 16, at 15). The 25 magistrate judge determined that the ALJ did consider Butcher’s claims of flare-ups but concluded 26 that they were inconsistent with the medical record and that this conclusion was supported by

27 1 “[T]he district judge must review the magistrate judge’s findings and recommendations 28 de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia,

(9th Cir. 2003) (en banc). 1 substantial evidence. (ECF No. 22, at 6; see also footnote 5 on page 6). 2 The ALJ may only reject a claimant’s testimony about the severity of symptoms by giving 3 specific, clear, and convincing reasons. See Vasquez v. Astrue,

(9th Cir. 2009). 4 (ECF No. 22, at 5; ECF No. 16, at 2). A court should not second-guess an ALJ’s determination to 5 discount a claimant’s testimony if that determination is supported by substantial evidence. 6 Chaudhry v. Astrue,

(9th Cir. 2012). Butcher argues that the magistrate judge 7 failed to explain how the ALJ satisfied his burden of providing specific, clear, and convincing 8 reasons. (ECF No. 16, at 2). The court disagrees. 9 The R&R highlights the ALJ’s specific reason for discounting Butcher’s testimony 10 regarding flare-ups—it was inconsistent with the medical record, “which included unremarkable 11 imaging studies and normal or near normal findings;” it was “inconsistent with the testimony of 12 the medical expert;” and “inconsistent with the conservative nature of his treatment.” (ECF No. 13 22, at 6). These are specific, clear, and convincing reasons supported by substantial evidence in 14 the administrative record, and when “evidence reasonably supports either confirming or reversing 15 the ALJ's decision, [the court] may not substitute [its] judgment for that of the ALJ.” Tackett v. 16 Apfel,

(9th Cir. 1999). Butcher’s first objection is overruled. 17 Butcher next argued that the ALJ did not appropriately weigh the opinions of Dr. Huang, 18 his treating physician, and that the ALJ’s reasoning for rejecting Dr. Huan’s opinions was 19 inadequate. (ECF No. 16, at 17–18). The magistrate judge found that the ALJ “did not err in 20 discounting the opinions of Dr. Huan” because the ALJ found them inconsistent with the medical 21 record—a finding supported by substantial evidence. (ECF No. 22, at 7). Butcher objects that the 22 magistrate judge did not properly analyze the ALJ’s decision. (ECF No. 24, at 4). 23 A treating physician’s opinion is generally given deference over the opinion of an 24 examining physician. E.g., Ghanim v. Colvin,

(9th Cir. 2014). If the treating 25 physician’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic 26 techniques and is not inconsistent with the other substantial evidence in the case record, it will be 27 given controlling weight” and the ALJ may not reject it unless he provides “clear and convincing 28 reasons that are supported by substantial evidence.”

(cleaned up) (citations omitted). 1 On the other hand, if a treating physician’s opinion is contradicted by the medical record, 2 the ALJ must “consider the factors set out in

(c)(2)–(6) in determining how 3 much weight to afford the treating physician’s medical opinion.”

(citations omitted). These 4 factors include the length and frequency of the treating relationship, the “[n]ature and extent” of 5 the treating relationship, the supportability of the treating physician’s opinion by medical evidence, 6 and the consistency of the treating physician’s opinion with the record as a whole.

404.1527(c)(2)-(6). The ALJ may not reject a treating physician’s contradicted opinion unless he 8 provides “specific and legitimate reasons that are supported by substantial evidence.” Ghanim, 9

. This burden is met if the ALJ sets out a detailed and thorough summary of the 10 facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” 11 Thomas v. Barnhart,

(9th Cir. 2002) (quotations omitted). 12 The magistrate judge determined that the “specific and legitimate reasons” standard applies 13 here because substantial evidence supports the ALJ’s finding that the medical record contradicts 14 Dr. Huang’s opinion. (ECF No. 22, at 7). Butcher agrees and does not object to this. (ECF No. 15 24, at 4). However, that is where the R&R’s analysis ends. The magistrate judge does not analyze 16 whether the ALJ considered the factors outlined in

(c) or whether the ALJ’s 17 reasoning meets the “specific and legitimate reasons” standard. (See ECF No. 22, at 7–8). It is 18 unclear from the R&R whether the ALJ committed reversable error. The court will therefore 19 remand this matter back to the magistrate judge for further analysis, consistent with this order. 20 . . . 21 . . . 22 . . . 23 . . . 24 . . . 25 . . . 26 . . . 27 . . . 28 . . . 1 IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff James 4 Christopher Butcher’s objection to the magistrate judge’s Report and Recommendation (ECF No. 5 24) is OVERRULED in part. This matter is REMANDED to the magistrate judge for a 6 recommendation on whether the ALJ properly considered the

(c) factors or 7 met the “specific and legitimate reasons” standard. 8 DATED May 16, 2024. 9 ________________________________________ 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28