Buck v. Colvin

Filing 23

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - denying 15 Social Security Opening Brief. Signed by Judge Dana L. Christensen on 10/13/2015. (APP, )

COURTFILED

IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

OCT 13 2015
Cle~, l:J.S District Court
D1stnct Of Montana
Missoula

CV 14-235-M-DLC-JCL

AUDREY K. BUCK,
Plaintiff,

ORDER
vs.
CAROLYNW. COLVIN,
Commissioner of Social Security,
Defendant.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation on June 23, 2015, recommending that Plaintiff Audrey K.
Buck's motion for summary judgment be denied, and that the Commissioner's
decision be affirmed. Buck timely filed objections and is therefore entitled to de
novo review of the specified findings and recommendation to which she objects.
28 U.S.C. § 636(b)(l). The portions of the findings and recommendation not
specifically objected to will be reviewed 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).

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Counsel for Buck objects only that the Findings and Recommendation do not
address Counsel's response to the Order to Show Cause. To the extent the Court
will respond to this non-substantive objection, that response will issue from Judge
Lynch. As Buck raises no other objections, the Court will review for clear error.
Judge Lynch did not clearly err in finding that, because the ALJ had
adequate and unambiguous evidence upon which to base his decision, the ALJ was
not required to further develop the record by ordering a consultative examination.
The record regarding Buck's alleged mental impairments includes treatment notes
from Buck's primary care physician as well as from nurse practitioners, and shows
Buck's symptoms were well-controlled on medication. Also included were the
ALJ's findings that Buck's activities of daily living were only mildly restricted by
her depression and anxiety. The ALJ thus had adequate and unambiguous
evidence upon which to base its decision, and was therefore not required to further
develop the record by ordering a consultative examination of Buck or eliciting
expert medical· testimony.
Next, Judge Lynch did not clearly err in finding the ALJ acted properly
when discounting Dr. Tremper's physical capacities assessment form. The ALJ
properly discounted Dr. Tremper's opinion because it was apparently based in part
on Buck's subjective complaints, because no evidence indicated Dr. Tremper
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conducted any objective testing to assess Buck's abilities, and because the ALJ
had sufficiently clear and convincing reasons for finding Buck less than entirely
credible.
There was no clear error in Judge Lynch's determination that the ALJ had
sufficiently clear and convincing reasons, supported by substantial evidence, for
finding Buck less than entirely credible. The ALJ noted discrepancies between
Buck's complaints and 1) the results of medical examinations and x-rays, 2)
Buck's conservative course of treatment, and 3) Buck's continuing ability to
engage in the daily activities of caring for her grandson, fixing simple meals, and
doing light cleaning and small loads of laundry. This specific evidence was
enough to weaken the credibility of Buck's testimony.
Nor was there clear error in Judge Lynch's determination that the ALJ
provided germane reasons for rejecting the testimony of Buck's daughter, Melissa.
Melissa's testimony that Buck could not sit, stand, or hold up her head for more
than five or ten minutes, and that Buck has to lie down due to anxiety, was not
supported by the medical records. These inconsistencies undermined Melissa's
testimony, and were germane reasons for rejecting it.
Finally, Judge Lynch did not clearly err in determining that, while the ALJ
erred by not asking the vocational expert if a person who is unable to understand,
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remember, and carry out complex and detailed instructions could perform those
jobs, the error was harmless. Relying on the vocational expert's testimony, the
ALJ found Buck could perform the jobs of bench assembler, motel cleaner, and
deli clerk, as set forth in the DOT. All three jobs are identified in the Dictionary
of Occupational Titles as "SVP 2", which equates to unskilled work, which in tum
accounts for a limitation of following only short, simple instructions. The
vocational expert identified unskilled jobs, thus accounting for the limitation on
understanding, remembering, and carrying out complex instructions, and rendering
the ALJ's error harmless.
There being no clear error in Judge Lynch's remaining Findings and
Recommendation,
IT IS ORDERED that Judge Lynch's Findings and Recommendation (Doc.
20) are ADOPTED IN FULL. Plaintiffs motion for summary judgment (Doc. 15)
is DENIED. The Commissioner's decision is AFFIRMED.
Dated this

l3 ~ay of October, 2015

Dana L. Christensen, Chief Judge
United States District Court

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