Pepin v. Colvin
Filing
20
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS: denying 13 Social Security Opening Brief and adopting 19 Findings and Recommendations. The Commissioner's decision is AFFIRMED. Signed by Judge Dana L. Christensen on 9/3/2015. (APP, )
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
S£p 0 3 2015
Clerk, U.s
Dtstrict
..
0 ~~/nct Court
MissouJ~ntana
CV 14-211-M-DLC-JCL
DARREN J. PEPIN,
Plaintiff,
ORDER
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation on April10, 2015, recommending that Plaintiffs motion for
summary judgment be denied, and that the Commissioner's decision be affirmed.
Plaintiff did not timely object to the Findings and Recommendation, and so has
waived the right to de novo review ofthe record. 28 U.S.C. § 636(b)(1). This
Court will review the Findings and Recommendation for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981 ). Clear error exists if the Court is left with a "definite and firm conviction
that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427
(9th Cir. 2000). There is no clear error in Judge Lynch's Findings and
1
Recommendations and the Court adopts them in full. Because the parties are
familiar with the facts of this case they will only be included here as necessary to
explain the Court's order.
Judge Lynch did not clearly err in finding that the Administrative Law
Judge ("ALJ") provided sufficiently clear and convincing reasons for finding
Pepin's testimony only partially credible. The ALJ relied on a number of different
medical records containing considerable evidence of malingering behavior, lack of
medical evidence supporting the existence or severity of Pepin's alleged
symptoms, and Pepin's noncompliance with treatment recommendations. Further,
the ALJ found that Pepin's daily activities showed he was capable of more
physical activity than he alleged.
There is no clear error in Judge Lynch's finding that the ALJ did not
improperly disregard Dr. Walter's medical records or fail to give enough weight to
Dr. Peterson's opinion. Dr. Walter did not see Pepin after his alleged onset date.
The ALJ cited to Dr. Walter's notes, and addressed the fact that Pepin frequented
the emergency room with complaints of fatigue and insomnia. Judge Lynch did
not clearly err in finding that even if the ALJ erred in not addressing Dr. Walter's
treatment notes directly, any error was harmless. Similarly, any potential error on
the ALJ's part in not specifically noting Dr. Peterson's recommendations of
2
medication and therapy was harmless given the ample evidence showing that
Pepin consistently disregarded his health care providers' recommendations.
Judge Lynch did not clearly err in finding that the ALJ provided germane
reasons for rejecting the records from other sources, namely licensed clinical
social worker Joe Uhland Advanced Practice Registered Nurse Suzanne
Lockwood. Uhl' s notes show, if anything, only that Pepin refused much of the
treatment he was offered. The ALJ properly credited Dr. Webber's opinion over
Lockwood's, and even then, accommodated for Pepin's mental impairments.
There is no clear error in Judge Lynch's finding that the ALJ did not fail to
fully develop the record as to Pepin's alleged chronic fatigue syndrome. Pepin has
never been diagnosed with chronic fatigue syndrome and raises this argument for
the first time in his reply brief. Pepin has not presented any evidence showing
why admitting his high school records would be relevant to his disability claim.
Judge Lynch did not err in finding that Pepin has also not presented any evidence
showing the ALJ' s ability to render a fair judgment was impaired.
There is no clear error in Judge Lynch's finding that the ALJ's decision not
to reopen Pepin's prior application did not violate his due process rights. Pepin
did not show that he lacked the mental capacity to consent to the decision.
Further, medical records show that Pepin did not appear to have a clear cognitive
3
deficit.
There being no clear error in Judge Lynch's Findings and Recommendation,
IT IS ORDERED that Judge Lynch's Findings and Recommendation (Doc.
19) are ADOPTED IN FULL. Plaintiffs motion for summary judgment (Doc. 13)
is DENIED. The Commissioner's decision is AFFIRMED.
Dated this
3~~ay of September, 2015.
Dana L. Christensen, Chief Jud e
United States District Court
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