Pierce v. Astrue

Filing 26

ORDER ADOPTING 23 FINDINGS AND RECOMMENDATIONS. The Commissioner's decision denying disability insurance benefits and supplemental security income is affirmed. Pierce's 13 Motion for Summary Judgment is DENIED and the Commissioner's 19 Motion for Summary Judgment is GRANTED. Signed by Judge Richard F. Cebull on 8/6/2012. (NOB)

FILED

IN THE UNITED STATES DISTRICT COURT

AUG 062012
FOR THE DISTRICT OF MONTANA

PATRICK E. DUFFY CLERK

BY

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BILLINGS DIVISION
JODI C. PIERCE,
Plaintiff,

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U.S. DISTRICT COURT
BILLINGS DIVISION

Cause No. CV-II-I05-BLG-RFC

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v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

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

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Dekndan~

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Jodi Pierce filed this action for judicial review of the determination that she
was not eligible for disability insurance benefits and supplemental security income
because she was not disabled. Pending before the Court is the review of U.S.
Magistrate Judge Carolyn S. Ostby's Findings and Recommendations (doc. 23) as
to the parties' cross-motions for summary judgment. Judge Ostby recommends
that Pierce's motion be denied and that the Commissioner's be granted.
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). Pierce has filed
timely objections (doc. 24), to which the Commissioner has replied (doc. 25).
Accordingly, the Court must make ade novo determination of those portions of
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the Findings and Recommendations to which objection is made. 28 U.S.C. §
636(b)(1). For the following reasons, Pierce's objections are overruled.
Pierce's first objection is that Judge Ostby failed to incorporate her
proposed uncontested findings of facts and that consideration of her proposed
findings of fact would require summary judgment in her favor. Regardless, a
review of her statement of facts (doc. 15) reveals that many of her facts were also
contained in the Commissioner's statement of facts (doc. 21) and that Judge Ostby
considered many of them. Further, Pierce's cursory statement that consideration
of her proposed facts would require sUll1n1ary judgment in her favor does not
establish that as fact.
Second, Pierce objects to Judge Ostby's rejection of the testimony of
counselor Tim Dove and nurse practitioner Laura Wetherelt. But Judge Ostby
correctly concluded the ALJ gave germane reasons for rejecting the testimony of
these "other sources." See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Third, Pierce objects to Judge Ostby's conclusion that the ALJ correctly
assessed Pierce's credibility in rejecting her subjective complaints. The Findings
and Recommendations, however, correctly conclude that the ALJ gave specific,
clear, and convincing reasons for discounting Pierce's subjective complaints as
required by Molina. 674 F.3d at 1112-13.
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After a de novo review, the Court determines the Findings and
Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
adopts them in their entirety.
Accordingly, the Commissioner's decision denying disability insurance
benefits and supplemental security income is affirmed. IT IS HEREBY
ORDERED that Pierce's Motion for Summary Judgment (doc. 13) is DENIED
and the Commissioner's Motion for Summary Judgment (doc. 19) is GRANTED.
The Clerk of Court shall notify the parties of the making of this Order, enter
judgment, and close thi~
DATED this

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August, 2012,/

CHARDF. CEB
UNITED STATES DISTRICT JUDGE

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