Klein v. Colvin

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION. The Magistrate Judge's 23 Report and Recommendation is accepted and adopted as the findings of fact and conclusions of law of this Court. IT IS FURTHER ORDERED that the ALJ's decision is affirmed and the case is dismissed. FURTHER ORDERED that the Clerk of the Court shall enter Judgment accordingly. Signed by Senior Judge David C Bury on 2/11/2015. (See Order for details)(ALS)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Janine Klein, ) ) Plaintiff, ) v. ) ) Carolyn W. Colvin, Acting Commissioner of ) Social Security, ) ) Defendant. ) ) _______________________________________ ) CV 13-1584-TUC-DCB ORDER This matter was referred to Magistrate Judge Leslie A. Bowman on November 20, 2013, 15 pursuant to Rules of Practice for the United States District Court, District of Arizona (Local 16 Rules), Rule (Civil) 72.1(a). On October 8, 2014, Magistrate Judge Bowman issued a 17 Report and Recommendation (R&R). She recommends that the Court affirm the Social 18 Security Commissioner’s decision denying Plaintiff’s claim for disability benefits. The 19 Court accepts and adopts the Magistrate Judge’s R&R as the findings of fact and 20 conclusions of law of this Court, affirms the decision, and enters Judgment for the 21 Defendant. 22 23 24 25 26 27 28 STANDARD OF REVIEW The duties of the district court in connection with a R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). 1 This Court's ruling is a de novo determination as to those portions of the R&R to which 2 there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 3 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en 4 banc). To the extent that no objection has been made, arguments to the contrary have been 5 waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not 6 filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 7 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on 8 appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States 9 Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court 10 need only satisfy itself that there is no clear error on the face of the record in order to accept 11 the recommendation)). 12 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 13 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 14 objecting to the recommended disposition has fourteen (14) days to file specific, written 15 objections). In deciding the case, the Court has considered the objection filed by the 16 Plaintiff, and the parties’ briefs and the administrative record considered by the Magistrate 17 Judge. 18 OBJECTIONS 19 Plaintiff objects to the R&R. She asserts that the Magistrate Judge’s recommendation is 20 based on a Residual Functional Capacity (RFC) assessment that was not made by the 21 Administrative Law Judge (ALJ).1 The Magistrate Judge failed to consider Plaintiff’s need 22 to use a sign-language interpreter. The Magistrate Judge improperly treated the ALJ’s 23 24 25 26 27 28 1 This case was accepted for review by the Appeals Counsel because the ALJ incorrectly stated the last insured date. The Appeals Counsel adopted the decision of the ALJ and extended it to the entire period from Klein’s alleged onset date to the date of the ALJ’s decision. The Commissioner affirmed. Therefore, the Magistrate Judge referred to the final decision of the Commissioner as the ALJ’s decision and the Plaintiff refers to it as the Appeals Council decision. This Court will follow the Magistrate Judge’s lead and refer to the final agency decision as the ALJ’s decision. -2- 1 prerogative to analyze the record and assess Klein’s RFC as insulating it from substantial- 2 evidence review. The Magistrate Judge incorrectly held that Klien’s restriction to “simple 3 instructions” did not conflict with the vocational expert’s identification of Reasoning Level 4 2 Dictionary of Occupational Titles. 5 The Plaintiff’s objections are aimed at two conclusions made by the ALJ, which the 6 Magistrate Judge recommends this Court affirm, which are as follows: 1) “The Claimant has 7 a severe hearing loss and must have a job that requires only occasional hearing and 8 speaking;” and 2) “She is limited to jobs requiring understanding, remembering and carrying 9 out simple job instructions only.” (R&R (Doc. 23) at 8 (quoting Tr. 41)). 10 As to the first conclusion, Plaintiff asserts this misstates the evidence which consisted of 11 her testimony that she needed “to communicate face-to-face (to lip read) or use a sign- 12 language interpreter,” (Objection (Doc. 24) at 6 (citing P’s Opening Brief at 17-21)), and 13 non-examining source opinions that she “could speak without limitation and had a limited 14 ability to hear”; was “limited in communication in the workplace in any background noise,” 15 needed to wear hearing aids and avoid concentrated exposure to noise. (Objection (Doc. 24) 16 at 8-9); (TR 101, 115). Plaintiff challenges the Magistrate Judge’s finding that “the ALJ 17 could reasonably conclude that Klein’s hearing impairment would limit her ability to hear 18 and require her on occasion to position herself face-to-face with the speaker and on occasion 19 to ask the speaker to speak slowly so she could understand. Because her impairment makes 20 communication more difficult, the ALJ could reasonably conclude that Klein was limited to 21 jobs that would require only occasional hearing and speaking.” Id. at 3. Plaintiff argues the 22 ALJ’s decision does not include the logic well articulated by the Magistrate Judge and 23 “[t]here is nothing intrinsic to hearing and speaking occasionally that such take place face- 24 to-face with slow speaking.” Id. at 5. Plaintiff believes the ALJ did not consider either 25 limitation and did not consider her need for a sign-language interpreter. 26 The Court notes that, likewise, there is nothing intrinsic about needing face to face 27 communications to allow Plaintiff to lip read which precludes her from communicating 28 -3- 1 “only occasionally.” The ALJ’s decision reflected the Plaintiff was being assisted at the 2 hearing by a sign-language interpreter, but Plaintiff’s testimony reflected she did not 3 regularly use an interpreter. Her testimony was that she generally got on by reading lips and 4 hearing aids helped as long as there was not excessive background noise. See (TR 78); see 5 also 101, 115 (non-examining state agency medical opinions); R&R at 5 (daily living 6 activities). Plaintiff’s work history reflects she held jobs, including her current part-time 7 position as a water aerobics instructor, where she communicated occasionally, without a 8 sign-language interpreter. Based on Plaintiff’s testimony, such occasional communications 9 occurred face-to-face without the use of hearing aids. Plaintiff testified her hearing aids 10 were not working and that she could not use them in the water, anyway because the water 11 would damage them. (TR at 77.) 12 The Magistrate Judge did not err in recommending this Court find substantial evidence 13 supporting the ALJ’s decision that Plaintiff had severe hearing loss and must have a job that 14 requires only occasional hearing and speaking. 15 The Court finds the same regarding the Magistrate Judge’s recommendation to find no 16 error between the vocational expert’s opinion Plaintiff can perform RDL 2 jobs and the 17 ALJ’s finding that Plaintiff was a person “who can ‘understand and remember [and] carry 18 out simple job instructions only.’” (R&R (Doc. 23) at 8 (quoting Tr. 41(R&R at 12 (quoting 19 TR 87, 41)). The vocational expert’s opinion was that Plaintiff could perform jobs listed in 20 the DOT (Dictionary of Occupational Titles) as having a Reasoning Development Level 21 (RDL) of 2). (R&R at 12) “She argues that an RDL of 2 is incompatible with her limitation 22 to ‘understand and remember [and] carry out simple job instructions only.’” Id. 23 “An RDL of 2 requires a worker to ‘[a]pply commonsense understanding to carry out 24 detailed but uninvolved written or oral instructions.’” (R&R at 12-13) (citation omitted). 25 “The RDL 1 description contains the word “simple” but further restricts the term in the 26 phrase “simple one- or two-step instructions.” Id. at 13. The ALJ’s use of the phrase 27 “simple job instructions” does not exclude Plaintiff from jobs meeting the RDL 2 description 28 -4- 1 just because it does not contain the word “simple” but uses instead the phrase “detailed but 2 uninvolved written or oral instructions.” There is no evidence that Plaintiff is limited to 3 simple one- or two-step instructions. (R&R at 13). Like the Magistrate Judge, this Court 4 “concludes the vocational expert did not err by opining that Klein could perform the job of 5 office helper or assembler even though she could ‘understand and remember [and] carry out 6 simple job instructions only.’” Id. 7 8 CONCLUSION After de novo review of the issues raised in Plaintiff’s Objection, this Court agrees 9 with the findings of fact and conclusions of law made by the Magistrate Judge in her R&R. 10 The Court adopts it, and for the reasons stated in the R&R, the Court affirms the decision of 11 the ALJ denying Plaintiff disability benefits and dismisses the Plaintiff’s case. 12 Accordingly, 13 14 15 16 17 18 19 20 21 IT IS ORDERED that after a full and independent review of the record, in respect to the objections, the Magistrate Judge's Report and Recommendation (Doc. 23) is accepted and adopted as the findings of fact and conclusions of law of this Court. IT IS FURTHER ORDERED that the ALJ’s decision is affirmed and the case is dismissed. IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment accordingly. DATED this 11th day of February, 2015. 22 23 24 25 26 27 28 -5-

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