Cummins v. Astrue

Filing 47

ORDER. IT IS ORDERED that the Findings and Recommendation 42 is ACCEPTED and ADOPTED in full. IT IS FURTHER ORDERED that Plaintiff James J. Cummins' Motion for Reversal 28 , second Motion for Reversal 35 , third Motion for Reversal 37 , and Motion of Understanding 40 are DENIED. IT IS FURTHER ORDERED that Defendant Commissioner of Social Security's Cross Motion to Affirm 29 is GRANTED. Signed by Judge Richard F. Boulware, II on 9/2/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES J. CUMMINS,

Case No. 2:12-cv-00443-RFB-GWF

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Plaintiff,

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v.
MICHAEL J. ASTRUE,
Head of Adjudication Social Security,
Defendant.

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ORDER ACCEPTING REPORT AND
RECOMMENDATION

I.

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INTRODUCTION
Before the Court is Plaintiff

Motion for Reversal, ECF No. 28; a second

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Motion for Reversal, ECF No. 35; a third Motion for Reversal, ECF No. 37; and Motion of

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Understanding, ECF No. 40. Additionally before the Court is a Cross Motion to Affirm, ECF No.

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29, filed by Defendant Carolyn W. Colvin, Acting Commissioner of Social Security
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On September 12, 2014, the Honorable George Foley, Jr.,

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United States Magistrate Judge, issued a Findings and a Recommendation, ECF No. 42,

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recommending

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granted. Cummins timely objected, ECF No. 43, and a response was filed by the Commissioner,

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ECF No. 44. For the reasons discussed below, the Court accepts the Findings and

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Recommendation, denies

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and grants

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II.

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motions be denied

three Motions for Reversal and Motion of Understanding,
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BACKGROUND
Neither party

summary of the background facts, and so

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Colvin is hereby substituted into this case as the proper defendant in place of Michael J.
Astrue. See Fed. R. Civ. P. 25(d).

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the Court incorporates and adopts, without restating, that

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ackground section here. See Findings

& Recommendation 1:25 12:14, ECF No. 42.

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III.

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LEGAL STANDARD

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28 U.S.C. § 636(b)(1). A party may file specific

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written objections to the findings and recommendations of a magistrate judge. Id. § 636(b)(1); D.

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Nev. R. IB 3-2(a).

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a de novo determination of those portions of the report or specified proposed findings or

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recommendations to which objection is mad

28 U.S.C. § 636(b)(1).

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determinations and

a judgment affirming, modifying, or

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reversing the decision of the Commissioner of Social Security, with or without remanding the

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disability determination should be upheld unless it contains legal error or is not supported by
Garrison v. Colvin, 759 F.3d 9

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Substantial

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evidence means more than a mere scintilla, but less than a preponderance; it is such relevant

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evidence a

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)).

Id. (quoting

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reviewing court] may no

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504 F.3d at 1035. Nevertheless, the court may not simply affirm by selecting a subset of the

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e ALJ

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Lingenfelter,

did not rely. Garrison, 759 F.3d at 1009

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orted by substantial evidence. Andrews

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v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995).

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...

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"The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and for resolving ambiguities." Id, at 1039. The Commissioner may reject a medical

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Id. at 1041. Moreover, a conclusory statement by a medical source that a

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itled to no special significance. 20 C.F.R. §

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404.1527(e), § 416.927(e), Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.

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1992

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reasons for c

legitimate
Garrison, 759 F.3d at 1013.

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The Social Security Act has established a five-step sequential evaluation procedure for

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determining Social Security disability claims. See 20 C.F.R. § 404.1520(a)(4); Garrison, 759 F.3d

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education and work experience. RFC is defined as the most an individual is capable of doing in a

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§ 416.945(a)(1).

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The ALJ then determines whether the claimant can make an adjustment to substantial

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gainful work other than his past relevant work; if so, the ALJ will find that the claimant is not

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disabled within the meaning of the Social Security Act. Admin. Record 22

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404.1520(g). At step five, the burden is on

); 20 C.F.R. §
laimant can perform

Reddick v. Chater, 157 F.3d

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vocational expert in response to a hypothetical that sets out all the limitations and restrictions of
Andres, 53 F. 3d at 1039.

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IV.

DISCUSSION

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Recommendation, the Court concludes that substantial evidence

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decision that Cummins is not disabled under Sections 216(i), 223(d), and 1614(a)(3)(A) of the

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, and

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the ALJ provided specific and legitimate reasons for assigning greater weight to specific medical

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opinions over others. Accordingly, the Court accepts the Findings and Recommendation, denies

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three Motions for Reversal and Motion of Understanding, and grants the
otion to Affirm.

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ALJ John Heyer issued a decision on May 24, 2011 finding Cummins ineligible for

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disability under the Social Security Act because he was capable of performing light work as

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defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). AR 20-30. The ALJ determined the evidence

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shows the claimant has a longstanding history of back pain due to degenerative disc disease in his

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cervical and lumbar spine. AR 25. However, by considering the objective medical evidence as well

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ivities, the ALJ found Cummins retained the capability of

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performing light exertion work. Id. The ALJ also used the testimony of Robin Generaux, a

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vocational expert, to determine that jobs suitable for Cummins exist in the regional and national

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economy. AR 29.

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First, the ALJ considered physical exams conducted in May 2009 and 2010. AR 25. The

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oulders, hips, knees,

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and ankles. AR 25-26. Further, Cummins exhibited a normal gait, was capable of squatting, and

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lacked muscle spasms. AR 26.

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Second, the ALJ considered the opinions of three medical professionals: Mayenne Karelitz,

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M.D., Jerrold Sherman, M.D., and Ha Le, PA-C. AR 26-28. Karelitz determined that Cummins

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retains the capability to perform medium exertion work with no postural, manipulative or

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environmental limitations. AR 28. Likewise, Sherman opined Cummins retains the capacity to

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perform medium exertion work, but also concluded that he was limited to an occupation with an

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option to alternate between sitting and standing positions. AR 28. Sherman also suggested

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he ALJ

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limitation to light exertion work to be the most appropriate given the medical examinations. AR

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28.
, the ALJ identified specific and legitimate reasons for assigning it little

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that

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the statement was conclusory because Le failed to reference any medical records, assessments, or

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significant knowledge about the functional requirements or availability of jobs suitable for

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Cummins. AR 27. The ALJ also

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suffered from bipolar disorder, when in fact he has only been diagnosed with major depressive

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disorder. AR 28.
Third, the ALJ determined that

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severity he claimed. AR 26-28. Multiple examinations indicate Cummins lacked a disabling

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mental impairment, because Cummins was oriented, alert, retained an intact memory, and did not

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exhibit psychosis. Id. Moreover, the mental impairments he did have proved treatable through the

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use of Abilify and consequently did not prevent all work activity. AR 26. Rather than adhering to

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the prescription and treatment plans addressing his physical impairments, however, Cummins

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opted to self-medicate through the use of marijuana. AR 26.

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Fourth, Cummins testified to his daily activities including feeding chickens, growing a

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garden, washing dishes, doing laundry, walking his dogs, playing computer games, searching for

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jobs online, and cleaning his property by burning weeds and removing garbage. AR 27. The ALJ

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found that these activities co

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demonstrated Cummins ability to perform a range of light exertion work. AR 27.

ed symptoms and

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Finally, vocational expert Robin Generaux testified that jobs exist in the regional and

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national economy suitable for an individual of similar age, education, work experience, and

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testimony is inconsistent with the information contained in the Dictionary of Occupational Titles

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(DOT), Generaux offered the reasonable explained that the DOT fails to discuss the sit/stand

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option. AR 29.

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However, Generaux experience in the field exceeds twenty-five years which allows her

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to discuss jobs permitting the sit/stand option. AR 29.
Based on this analysis, the Court concludes that substantial evidence in the record supports

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1614(a)(3)(A) of the Social Security Act. In reaching this decision, the ALJ considered the record

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and the opinion of a vocational expert. Further, the ALJ identified specific and legitimate reasons

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V.

CONCLUSION

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Accordingly,

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IT IS ORDERED that the Findings and Recommendation (ECF No. 42) is ACCEPTED

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and ADOPTED in full.
IT IS FURTHER ORDERED that Plaintiff James J.

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No. 28), second Motion for Reversal (ECF No. 35), third Motion for Reversal (ECF No. 37), and

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Motion of Understanding (ECF No. 40) are DENIED.

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IT IS FURTHER ORDERED that

Cross

Motion to Affirm (ECF No. 29) is GRANTED.

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DATED: September 2, 2015.

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_____________________________
RICHARD F. BOULWARE, II
United States District Judge

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