Robison v. Astrue

Filing 24

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS re 15 MOTION for Summary Judgment filed by Melvin J. Robison, and 19 MOTION for Summary Judgment filed by Michael J. Astrue. Judge Magistrate Carolyn S Ostby termed case no longer referred. Signed by Judge Richard F. Cebull on 5/22/2012. (see order for specifics. Judgment to follow) (CAA, )

IN THE UNITED STATES DISTRICT COURT

F'LE0
MAY 222012

FOR THE DISTRICT OF MONTANA

PATRICK E. DUffY CLERK

BILLINGS DIVISION
MEL VIN J. ROBISON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
DekndanL

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BY_

beputy Clerk

U S DISTRICT COURT
BILLINGS DIVISION

Cause No. CV-11-91-BLG-RFC-CSO

ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE

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United States Magistrate Judge Carolyn Ostby has entered Findings and
Recommendation with respect to the parties' cross-motions for summary judgment
seeking judicial review of the Commissioner's denial of Social Security disability
insurance benefits. Doc. 21. Judge Ostby recommends that Robison's motion

(doc. 15) be denied, the Commissioner's motion (doc. 19) be granted, and the
denial of benefits be affirmed.
Upon service of a magistrate judge's findings and recommendation, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Robison has filed
timely objections (doc. 22), to which the Commissioner has replied (doc. 23).
Ordinarily, the Court must make a de novo determination of those portions of the
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Findings and Recommendations to which objection is made. 28 U.S.C. §
636(b)(1). But Robison's objections, that Judge Ostby (1) failed to properly weigh
the opinions of two treating psychiatrists, (2) failed to properly evaluate Mr.
Robison's credibility, (3) affirmed the ALl's reliance on flawed vocational expert
testimony, and (4) erred in concluding that the ALl's decision was supported by
substantial evidence, are a rehashing of the same arguments rejected by Judge
Ostby. See doc. 21, pp.8-11. Accordingly, this Court need not refute his
arguments. Shiplet v. Veneman, 620 F.Supp.2d 1203, 1206, n.2 (D.Mont. 2009)

aff'd383 Fed.Appx. 667 (9th Cir. 2010); see also Edwards v. Fischer, 414
F.Supp.2d 342,346-47 (S.D.N.Y. 2006) (where objections to F&R merely rehash
same arguments made to magistrate judge, review is for clear error).
Judge Ostby correctly noted that this Court's review of the Commissioner's
decision is very limited-the Commissioner's decision must be upheld unless it is
(1) not supported by substantial evidence, which means more than a mere scintilla,
but less than a preponderance, or (2) based on legal error. Ryan
v. Commr. a/Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42 U.S.C. § 405(g).
Just because there is evidence in the record that would support Robison's
claim does not render the ALJ's decision erroneous. As shown by Judge Ostby,
the Commissioner's decision is neither legally erroneous or unsupported by
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substantial evidence. As such, the Findings and Recommendation of Magistrate
Judge Ostby are well grounded in law and fact and are adopted in their entirety.

IT IS HEREBY ORDERED that Robison's Motion for Summary
Judgment (doc. 15) is DENIED, and the Commissioner's Motion for Summary
Judgment (doc. 19) is GRANTED.
The Clerk of Court shall notify the parties of the entry of this Order, enter
judgment accordingly, and close this case.
DATED this 22 nd day of May, 2012.
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