Thomas v. Colvin

Filing 25

ORDER the Plaintiff Amy Thomas's objections are overruled. Doc. 24 . IT IS FURTHER ORDERED that Magistrate Judge Leslie Bowman's Report and Recommendation is accepted and adopted. Doc. 22 . Signed by Chief Judge Raner C Collins on 4/1/2016. (See attached PDF for complete information)(DLC)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Amy Ann Thomas, No. CV-15-00156-TUC-RCC Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, 13 Defendant. 14 15 Pending before the Court is a Report and Recommendation (“R & R”) prepared by 16 Magistrate Judge Leslie A. Bowman. In the R & R, Magistrate Judge Bowman 17 recommends that the Court remand Plaintiff Amy Thomas’s disability insurance benefits 18 claim back to the Social Security Administration for further proceedings. Doc. 22. 19 Thomas has filed an objection to the R & R. Doc. 23. Defendant has filed a response to 20 the objection. Doc. 24. For the foregoing reasons, the Court shall overrule the objections 21 and accept and adopt the R & R. 22 23 I. Background 24 The factual and procedural background in this case is thoroughly detailed in 25 Magistrate Judge Bowman’s R & R (Doc. 22). This Court fully incorporates the 26 “Procedural History” section of the R & R into this Order. 27 28 1 II. Discussion 2 The duties of the district court in connection with a R & R are set forth in 3 Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district 4 court may “accept, reject, or modify the recommended disposition; receive further 5 evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 6 72(b)(3); 28 U.S.C. § 636(b)(1). 7 Where the parties object to an R & R, “[a] judge of the [district] court shall make a 8 de novo determination of those portions of the [R & R] to which objection is made.” 28 9 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Under a de novo 10 review, this Court reviews the Administration's decision to determine if the decision is 11 free of legal error and supported by substantial evidence. See Brewes v. Commissioner of 12 Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence” is more 13 than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 14 1009 (9th Cir. 2014).1 To determine whether substantial evidence supports a finding, “a 15 court must consider the record as a whole, weighing both evidence that supports and 16 evidence that detracts from the [Commissioner's] conclusion.” Aukland v. Massanari, 257 17 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation omitted). As a result, “[i]f the 18 evidence can reasonably support either affirming or reversing the ALJ's conclusion, [a 19 court] may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 20 466 F.3d 880, 882 (9th Cir. 2006). 21 Here, Thomas “does not know whether the Magistrate Judge explicitly or 22 implicitly recommended that the Court affirm, in part, the Administrative Law Judge’s 23 (“ALJ”) decision” Doc. 23 at 3. Thus, Thomas “objects to any explicit or implicit 24 recommendation to affirm, in part, that decision.” Id. Specifically, Thomas argues that 25 the ALJ’s credibility finding and the ALJ’s rejection of her treating physicians’ opinions 26 27 28 1 Although not material to Magistrate Judge Bowman’s ultimate recommendation of remanding for further proceedings, this Court notes that the R & R mistakenly applies the clear and convincing standard. See Doc. 22 at 4. The Court notes that the applicable standard for this case is substantial evidence. See Garrison, 759 F.3d at 1009-10. -2- 1 should not be affirmed. Lastly, Thomas argues that she actually satisfies the Garrison 2 requirements for a finding of disability. See Garrison, 759 F.3d at 1021-22. Defendant 3 concedes that Thomas’s claim should be remanded for further evaluation of: (1) the 4 weight that should be given lay witness opinions, “(2) [Thomas’s] diagnosis of 5 arachnoiditis at step two, (3) [Thomas’s] residual functional capacity, and (4) whether 6 [Thomas] can perform jobs that exist in significant numbers in the national economy.” 7 Doc. 24 at 2. 8 The Court overrules Thomas’s objections. For the ALJ’s credibility findings, the 9 ALJ provided substantial evidence for discounting Thomas’s pain allegations. For 10 example, Thomas disputed her firing and argued that she was able to continue working as 11 a building inspector with the only qualification being that she could not lift the 50-pound 12 ladder. Tr. At 378. The ALJ also notes that Thomas claimed she periodically used a cane 13 since 2011, but multiple treatment providers reported that she ambulated normally. Tr. 14 30. Thomas also collected unemployment benefits from April 2011 to September 2012. 15 Tr. 283-288. While collecting benefits, Thomas verified that she was able to work and 16 was looking for work. Tr. 289-364. Thomas’s receipt of unemployment benefits is not 17 consistent with a claim of disability. The Court is mindful that a claimant’s receipt of 18 unemployment benefits could be a legally sufficient reason on which the ALJ could 19 properly rely in support of his adverse credibility determination. See, e.g., Plummer v. 20 Colvin, 2014 WL 7150682, at *16 (D. Ariz. 2014). Thomas also later asserted that she 21 knew she could not work while receiving unemployment benefits. Tr. 30. Because there 22 is substantial evidence supporting the ALJ’s finding that Thomas was not a credible 23 witness, the Court affirms the ALJ’s finding. 24 Thomas also argues that the ALJ should have given her treating physicians’ 25 opinions more than limited weight. The ALJ noted that both medical doctors, Annabi and 26 Farr, relied on Thomas’s allegations of disabling pain when formulating their disability 27 opinions. Further, Dr. Annabi’s opinion letter was written approximately two years after 28 he last examined Thomas. At the previous examination, Dr. Annabi opined that Thomas -3- 1 was able to work. Tr. 32. As for Dr. Farr’s opinions, the ALJ also provided specific 2 reasons for discounting his opinions. Specifically, the ALJ discounted Dr. Farr’s opinion 3 because he stated that Thomas cannot work on a full-time basis yet more recent MRI 4 studies revealed only mild degenerative changes. Thus, there is substantial evidence 5 supporting the ALJ’s finding that Thomas’s treating physicians’ opinions should be 6 discounted. 7 Lastly, Thomas reargues that Thomas satisfies the Garrison test and thus the Court 8 should remand for payment of benefits. Doc. 23 at 7. As Magistrate Judge Bowman 9 thoroughly and correctly analyzed, Thomas does not meet the requirements of the 10 Garrison test. 11 Accordingly, 12 IT IS HEREBY ORDERED that Plaintiff Amy Thomas’s objections are 13 14 15 16 overruled. Doc. 24. IT IS FURTHER ORDERED that Magistrate Judge Leslie Bowman’s Report and Recommendation is accepted and adopted. Doc. 22. Dated this 1st day of April, 2016. 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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