Lisa Ann Colmery-Pinkerton v. Michael J Astrue

Filing 50

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 47 by Judge John F. Walter. *See Order for details.* (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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LISA ANN COLMERY-PINKERTON,

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Plaintiff,

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v.

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CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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No. ED CV 14-726-JFW (PLA)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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I.

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INTRODUCTION

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On April 16, 2015, the United States Magistrate Judge issued a Report and

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Recommendation (“R&R”) in this action, recommending that plaintiff’s Motion for Summary

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Judgment be denied, that defendant’s Cross-Motion for Summary Judgment be granted, and that

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the decision of the Commissioner be affirmed and this action dismissed. On May 6, 2015, plaintiff

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filed her “Objection to Notice of Magistrate Judge’s Report and Recommendation . . .”

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(“Objections” or “Obj.”).

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II.

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DISCUSSION

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Plaintiff raises several objections to the Magistrate Judge’s findings in the R&R, “making

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the court . . . aware of so many discrepencies [sic] and incorrect statements of facts as well as

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detrimentally wrong facts of dates of ocurrance/s [sic].” (Obj. at 3). She argues that it should be

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against “correct protocol to rule against the plaintiff in a case such as this one” where “there clearly

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are misnoted and incorrect dates of events and false statements of hearing on December of 2013,

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recorded of ALJ [] Young.” (Id.).

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First, plaintiff clarifies, and the Court accepts, that she was involuntarily hospitalized from

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September 24, 2012, through September 26, 2012 (Obj. at 1) -- not in 2011 (as indicated in

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footnote 17 on page 19 of the R&R),1 and not from September 24, 2012, through September 27,

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2012 (as indicated on page 9 of the R&R). These changes have no bearing on the Magistrate

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Judge’s findings and recommendations.

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Second, plaintiff states that she “ceased her care with Dr. Atiya due to his lack of sufficient

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help and practice ethics.” (Obj. at 1). A review of the record shows that the ALJ gave little weight

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to the opinion of treating physician Dr. Atiya because it was “unsupported by medical treatment

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records indicating abnormalities and symptoms consistent with the opined limitations.”

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(Administrative Record (“AR”) at 34). The Magistrate Judge found that the ALJ’s reasons for

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discounting Dr. Atiya’s opinions were specific and legitimate, and supported by substantial

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evidence. (R&R at 14). The fact that plaintiff no longer sees Dr. Atiya as a treating physician has

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no bearing on either the ALJ’s findings, or the Magistrate Judge’s findings and recommendations.

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Third, plaintiff informs the Court that treating physician Dr. Iglal El-Henawi is female. This

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change has no bearing on the Magistrate Judge’s findings and recommendations.

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Fourth, plaintiff states that she “wants the court to recognize that she HAS MULTIPLE

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INJURIES that . . . all need/require/demand medical attention on a regular basis.” (Obj. at 2). A

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review of the ALJ’s decision shows that he considered “the entire record,” and found that plaintiff

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Plaintiff’s clarification renders footnote 17 of the R&R irrelevant to the Court’s analysis.
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has multiple severe impairments including lumbar spine degenerative joint disease and multi-level

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disc protrusions; cervical spine degenerative disc disease and disc extrusion at the C6-C7 level;

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right knee degenerative joint disease; right knee torn meniscus; and a depression disorder. (AR

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at 25). He also found plaintiff’s hypertension, asthma, and obesity to be nonsevere. (AR at 25-

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26). Based on his consideration of the entire record and plaintiff’s severe and nonsevere

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impairments, the ALJ concluded that plaintiff was able to perform a reduced range of sedentary

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work. (AR at 28). The Magistrate Judge found no error in the ALJ’s decision and affirmed the

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decision of the Commissioner, thereby implicitly “recognizing” plaintiff’s multiple severe and

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nonsevere impairments as found by the ALJ. (R&R at 20).

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Fifth, plaintiff notes that she continues to “appeal and update the court with new

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braces/splints” for her arm and for her right knee, and continuously wears a brace on her right

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arm, and a hinged brace on her right knee. (Obj. at 2). She states that she wants the Court to

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request up-to-date records, history, and additional MRIs “if need be.” (Obj. at 3). Plaintiff’s prior

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request to submit new evidence was addressed by the Magistrate Judge in the R&R and denied

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because plaintiff failed to demonstrate good cause for failing to develop the evidence previously.

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(R&R at 9-11). Similarly, plaintiff presents no convincing reasons in her Objections for the Court

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to consider or request any new evidence.

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Sixth, plaintiff notes that her impairments “have been ongoing since onset of JANUARY

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1999,” as the result of a motor vehicle accident that was settled during arbitration. (Id.). She

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generally complains that the other party to the accident has misstated the settlement amount.

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(Id.). These facts have no bearing on the Magistrate Judge’s findings or recommendation.

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Seventh, plaintiff complains that the ALJ “may have only referenced less acute items of her

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2011 MRI” so as to justify his denial of her benefits. (Obj. at 2-3). A review of the record shows

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that the 2011 MRI of plaintiff’s right knee was ordered by Dr. Grames, and revealed a medial tear

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in the central portion of the medial meniscus and moderate joint effusion of the right knee. (AR

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at 364-65). Based on the MRI, and also on x-rays of the bilateral knees taken on June 8, 2011,

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Dr. Grames diagnosed plaintiff with right knee degenerative joint disease and a medial meniscus

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tear, and recommended arthroscopic surgery. (Id.). Although in his decision the ALJ did not state

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the specific weight given to Dr. Grames’ opinion (see generally AR at 34-35), the ALJ apparently

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considered that opinion and the 2011 MRI when he found that plaintiff has the severe impairments

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of right knee degenerative joint disease and a torn meniscus, and limited her to occasional

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pushing and pulling with the right lower extremity, occasional stooping, kneeling, crouching,

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crawling, balancing, and climbing stairs, no jumping, and no walking on uneven terrain. (AR at

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28, 31, 361-63, 364-65). Plaintiff does not identify the allegedly “more acute” items of the MRI she

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contends the ALJ failed to reference. (Obj. at 2-3).

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Eighth, plaintiff informs the Court that a 2001 MRI reference in the record may in fact be

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a 2002 MRI. (Obj. at 3; see also R&R at 13 & n.15, 16 n.16). This fact has no bearing on the

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Magistrate Judge’s findings or recommendation.

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Ninth, plaintiff states that she “wants the court to be aware of her honesty with reference

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to ALJ Young[’]s verbal words at the hearing described ther[e]in and would like . . . this court to

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identify it audi[]bly from the audio record of the unofficial record.” (Obj. at 3). Plaintiff does not

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further explain or identify with any reference to the hearing transcript, for instance, the issue to

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which she is referring. To the extent plaintiff is referring to the colloquy between the ALJ and the

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vocational expert she previously described in her Opposition to defendant’s Motion for Summary

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Judgment (see Opposition at 1-2), the Magistrate Judge already discussed this issue in the R&R,

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and cited to the relevant pages of the hearing transcript. (R&R at 7-8 & n.8 (citing AR at 82)).

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Plaintiff presents no compelling reason for the Court to review the audio recording of the hearing.

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Tenth, plaintiff requests a jury trial. Because a jury trial is not available in an action seeking

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judicial review of the Commissioner’s final decision denying disability benefits, plaintiff’s request

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for a jury trial is denied. 42 U.S.C. § 405(g).

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III.

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CONCLUSION

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the other records on

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file herein, the magistrate judge’s report and recommendation, and plaintiff’s Objections to the

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report and recommendation. The Court has engaged in a de novo review of those portions of the

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report and recommendation to which objections have been made. The Court agrees with the

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recommendations of the Magistrate Judge.

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ACCORDINGLY, IT IS ORDERED:

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1.

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The report and recommendation is accepted, with the following exceptions:
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page 9, note 11, line 21: “September 27, 2012,” should instead be read as
“September 26, 2012”;

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page 19: footnote 17 is disregarded in its entirety; and

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pages 14-17: any references to “he,” “him,” or “his” when referring to Dr. ElHenawi should instead be read as “she” or “her.”

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2.

Plaintiff’s Motion for Summary Judgment is denied.

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3.

Defendant’s Cross-Motion for Summary Judgment is granted.

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4.

The decision of the Commissioner is affirmed.

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Plaintiff’s Complaint is dismissed.

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6.

Judgment shall be entered consistent with this order.

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7.

The clerk shall serve this order and the judgment on all counsel or parties of record.

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DATED: May 12, 2015

___________________________________
HONORABLE JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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