Nelson v. Astrue
Filing
22
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS Granting 11 Motion for Summary Judgment; denying 14 Motion for Summary Judgment; adopting Findings and Recommendations REVERSED AND REMANDED for calculation and payment of benefits. Signed by Judge Richard F. Cebull on 11/29/2012. (ACL, )
FILED
NOV 2 9 2012
Cle~. U S District Co
DIStrict Of Monta
Billings
na
urt
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ause No. CV-12-06-BLG-RFC-CSO
JAMES L. NELSON,
Plaintiff,
v.
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS OF
US MAGISTRATE JUDGE
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
INTRODUCTION
On July 16, 2012, United States Magistrate Judge Carolyn Ostby entered
Findings and Recommendations (Doc. 19) with respect to Plaintiff James Nelson's
("Nelson") appeal from the Commissioner of Social Security's ("Commissioner")
decision denying his application for disability insurance benefits ("DIB") and
supplemental social security income ("SSI"). Judge Ostby was presented with cross
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motions for summary judgment and recommends that Nelson's motion be granted, the
Commissioner's motion be denied, and the Commissioner's decision to deny benefits
be reversed.
Judge Ostby further recommends the matter be remanded for
calculation and payment of benefits.
In sum, Judge Ostby found evidence to support Nelson's disability and
concluded that the Commissioner improperly rejected opinions ofNelson's treating
physicians, Dr.Howell and Dr. Trotsky, and inadequately determined that Nelson
lacked credibility respecting his functional limitations. Judge Ostby found these
errors dispositive and, when considered together other evidence, concluded Nelson
was disabled under the Act.
Judge Ostby also found the record sufficiently
developed and that no useful purpose would be served in remanding the matter for
further proceedings.
DISCUSSION
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). In this matter, the
Commissioner filed a timely objection on July 24, 2012. Nelson responded to the
Commissioner's objections on August 7, 2012.
The Commissioner's objections
obligate this Court to make a de novo determination of those portions of the Findings
and Recommendations to which an objection is made. 28 U.S.C. § 636(b)(1).
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Local Rule 72.3 governs objections to a magistrate judge's findings and
recommendation and provides in part:
(a) An objection filed pursuant to 28 U.S.C. § 636(b)(1) must itemize:
(1) each factual finding ofthe Magistrate Judge to which objection
is made, identifying the evidence in the record the party relies
on to contradict that finding; and
(2) each recommendation of the Magistrate Judge to which
objection is made, setting forth the authority the party relies on
to contradict that recommendation.
In this case, the Commissioner objects to the Findings and Recommendations
in their entirety. The Commissioner argues that the "ALJ's decision is supported by
substantial evidence and is legally sound." Doc. 20 p. 3.
The Commissioner must directly identify specific portions ofthe Findings and
Recommendation it finds objectionable which were not otherwise addressed in the
initial briefs. 1 Consequently, this Court will review de novo only specific itemized
objections.
"It is improper for an objecting party to attempt to relitigate the entire
content of the hearing before the Magistrate Judge by submitting papers to a
district court which are nothing more than a rehashing of the same arguments and
positions taken in the original papers submitted to the Magistrate Judge. Clearly,
parties are not to be afforded a 'second bite at the apple' when they file objections
to a Report and Recommendation, as the 'goal of the federal statute providing for
the assignment of cases to magistrates is to 'increas[e] the overall efficiency of the
federal judiciary."' Camarda v. General Motors Hourly-Rate Employees Pension
Plan, 806 F.Supp. 380, 382 (W.D.N.Y.,1992) quoting McCarthy v. Manson, 554
F.Supp. 1275, 1286 (D.Conn.1982), affd, 714 F.2d 234 (2d Cir.1983).
1
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I. The Opinions of Treating Physicians
The Commissioner argues that the ALJ had a reasonable basis upon which to
discount the opinions of treating physicians Dr. Howell and Dr. Trotsky. The Court
notes the almost identical argument and factual recital was presented to Judge Ostby.
SeeDoc.15p. 3-8.
Nevertheless, Judge Ostby, recognizing that she is not permitted to re-weigh
the evidence, found the ALJ erred in rejecting the opinions of Dr. Howell and Dr.
Trotsky. Court Doc. 19 p. 14. Judge Ostby cites Andrews v. Shalala, 53
F.3d 1035, 1041 (9 Cir.1995), noting that a treating physician's opinion is generally
entitled to greater weight. !d. at 15. In order to disregard such opinions an ALJ must
articulate" 'specific and legitimate reasons' supported by substantial evidence in the
record." Molina v. Astrue, 674 F.3d 1104,1111 (9th Cir. 2012) (citation omitted);
Reddickv. Chafer, 157 F.3d 715, th725 (9th Cir. 1998) (quotingLesterv. Chafer, 81
F.3d 821, 830 (9th Cir. 1995)).
With respect to Dr. Howell, Judge Ostby found, based on the record, that the
ALJ failed to articulate specific and legitimate reasons necessary to discount the
opinion of a treating physician. See Doc.19 p. 19-24.
This Court agrees that a
treating physician's opinion should not be discounted simply because it evolves over
the course of treatment. Additionally, this Court agrees that a treating physician's
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non-referral of a patient to a specialist is largely irrelevant to their underlying opinion
concerning disability level. Judge Ostby provides compelling support in the record
in finding the ALJ erred by failing to provide specific and legitimate reasons for
affording Dr. Howell's opinion limited weight.
With respect to Dr. Trotsky, after reviewing the record this Court agrees that
his opinion was mainly consistent with Dr. Howell's observations - during the
relevant period. See Tr. 653-659.
Further, while his treatment of Nelson was
somewhat limited, Dr. Trotsky worked in the same facility as Dr. Howell, had access
to his records, and thus his opinion should not have been discounted based on lack
of support. !d. at 659.
In sum, the record does not provide compelling legitimate and specific reasons
validating giving treating physicians' opinions limited weight.
II. Nelson's Credibility
An ALJ must support his credibility finding "with specific, clear and
convincing reasons." Taylor v. Comm 'r ofSoc. Sec. Admin., 659 F .3d 1228, 1234 (9th
Cir.20 11) (citation omitted).
Further, "[i]f the ALJ's finding is supported by
substantial evidence, the court may not engage in second-guessing." Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir.2008).
The Court finds Judge Ostby properly found that the ALJ erred in finding that
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Nelson was not fully credible due to allegedly inconsistent statements about his
military status and family history. Specifically, Judge Ostby notes that Nelson's
statements were consistent with the evaluation prepared by psychologist Dr. Tom
Peterson, which corroborates Nelson's statements concerning his family history.
Compare Tr. 73, 505. Judge Ostby also points out that the ALJ did not afford Nelson
a chance to fully respond concerning his military service. See Tr. at 103. Finally,
Judge Ostby correctly notes that certain experts upon whose opinions the ALJ
otherwise placed great weight, found Nelson's allegations credible. See Tr. at 455,
494. The fact that those experts' opinions on Nelson's disability differ from treating
physicians is of no consequence with respect to his credibility.
In sum, after a de novo review, the Court finds Judge Ostby properly
determined that the ALJ did not articulate specific clear and convincing reasons,
supported by substantial evidence, in finding Nelson not credible.
III. Remand for Immediate Award of Benefits.
For the reasons set forth in Judge Ostby's Findings and Recommendations, the
Court finds that remanding the matter back to the Commissioner for further
deliberations, on a fully developed record, would serve no useful purpose.
It is
soundly within the Court's discretion to remand for the immediate payment of
benefits. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996) ("[The Court]
._____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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may direct an award ofbenefits where the record has been fully developed and where
further proceedings would serve no useful purpose"). Therefore, based on the
foregoing it is proper to remand this matter for an immediate award of benefits in
accordance with Judge Ostby's recommendation.
CONCLUSION
Based on the foregoing, and after a de novo review, the Court determines the
Findings and Recommendation (Doc. 19) of Magistrate Judge Ostby are sufficiently
grounded in law and fact and HEREBY ORDERS they be adopted in their entirety.
Accordingly, IT IS HEREBY ORDERED that Nelson's motion for summary
judgment (Doc. 11) is GRANTED, and the Commissioner's motion for summary
judgment (Doc. 14) is DENIED.
IT IS FURTHER ORDERED that the
Commissioner's decision denying DIB and SSI be REVERSED and this matter be
REMANDED for calculation and payment of benefits.
The Clerk of Court shall notify the parties of the making of this Order
~
DATED this JfJ_ day
CHARDF. EBULL
UNITED STATES DISTRICT JUDGE
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