Williams v. Astrue

Filing 22

ORDER Adopting 14 Report and Recommendation. Denying 10 Motion to Remand. Granting 12 Motion for Summary Judgment. Signed by Judge James C. Mahan on 5/27/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RANDY G. WILLIAMS,

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2:12-CV-1902 JCM (VCF)

Plaintiff(s),
v.
CAROLYN W. COLVIN,

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Defendant(s).

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ORDER

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Presently before the court are the report and recommendation of Magistrate Judge Ferenbach.

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(Doc. # 14). Plaintiff Randy G. Williams filed an objection to the recommendation (doc. # 16) and

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a corresponding supplement, (doc #20). Defendant filed a response to plaintiff’s objections. (Doc.

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# 18).

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On December 8, 2009, plaintiff filed an application for disability insurance benefits alleging

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he became disabled on August 26, 2008. His claim was initially denied on April 30, 2010, and again

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upon reconsideration on June 24, 2010. On May 17, 2011, plaintiff appeared with representation

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before administrative law judge (“ALJ”) Heyer and on June 10, 2011, the ALJ issued a decision

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against the plaintiff, finding that he was not disabled, as defined by the Social Security Act, from

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August 26, 2008, through the date of the decision. The appeals council denied the plaintiff’s request

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for review on September 4, 2012, at which point the ALJ’s decision became final.

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James C. Mahan
U.S. District Judge

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On November 7, 2012, the plaintiff commenced this action for judicial review pursuant to

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42 U.S.C. § 405(g). After thoroughly analyzing plaintiff’s grounds for review, Magistrate Judge

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Ferenbach recommended that plaintiff’s motion to remand (doc. #10) be denied and summary

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judgment be granted in favor of defendant. (Doc. # 14). Plaintiff objects to Magistrate Judge

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Ferenbach’s report, arguing that the magistrate judge erred (1) by failing to justify the ALJ’s action

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to omit discussion of plaintiff’s lumbar and cervical facet syndrome, myofascial pain syndrome, and

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headaches, (2) incorrectly determining the credibility of claimant’s statements under federal law, (3)

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rejecting credible evidence of the treating physician in favor of the opinion of the ALJ’s findings,

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and (4) allowing testimony of the ALJ vocational expert. The court will address these arguments in

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turn.

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This court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects to

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a magistrate judge’s report and recommendation, then the court is required to “make a de novo

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determination of those portions of the [report and recommendation] to which objection is made.”

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28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct

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“any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S.

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140, 149 (1985). In reviewing the decision of the ALJ, the standard of review is whether there is

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substantial evidence in support of the determination and is entitled to deference when the evidence

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may support more than one outcome. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005);

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Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Morgan v. Comm’r of SSA, 169 F.3d 595,

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599 (9th Cir. 1999).

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In his first objection, plaintiff argues that the ALJ failed in its duty to identify and evaluate

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all of the claimant’s alleged impairments and thereafter the magistrate judge overlooked the severity

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of his impairments and failed to conduct an analysis of the plaintiff’s pain and other symptoms.

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Furthermore, the plaintiff objects to the magistrate judge’s justification for the ALJ’s omission of

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James C. Mahan
U.S. District Judge

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explicit discussion of the “other impairments” through determining that the impairments were

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“inherently part of degenerative disc disease,” which was discussed and evaluated at length. (Doc.

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#14).

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However, the court need not resolve whether there was an error in regards to this objection

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because the ALJ did find that the plaintiff had severe impairments and therefore any error, if

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committed, was harmless. Burch, 400 F.3d at 682-84 (concluding that any error committed . . . was

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harmless because the step was resolved in claimant’s favor and considered all impairments in

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assessing the residual functioning capacity). This rationale also addresses the plaintiff’s claim that

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the decision must be remanded for the magistrate judge’s post hoc rationalization for the basis of the

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ALJ’s decision. (Doc. #20).

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In his second objection, plaintiff argues that the magistrate judge erred in failing to consider

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that the ALJ ignored federal law governing credibility determinations when finding the claimant’s

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statements regarding his level of pain were not credible. To determine whether a claimant's testimony

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regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine

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whether the claimant has presented objective medical evidence of an underlying impairment which

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could reasonably be expected to produce the pain or other symptoms alleged . . . . Second, if the

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claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the

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claimant's testimony about the severity of her symptoms only by offering specific, clear and

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convincing reasons for doing so.” Id. at 1036 (internal citations and quotation marks omitted).

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In order to support a lack of credibility finding, when a subjective finding of pain is supported

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by objective medical evidence, the ALJ is required to “point to specific facts in the record which

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demonstrate [the plaintiff] is in less pain than [he] claims.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th

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Cir. 1993). In the instant case the ALJ’s conclusion was supported by the plaintiff’s treatment record

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which cited specific facts, including objective medical findings such as an MRI, x-rays, evidence

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regarding plaintiff’s daily activities, and plaintiff’s own descriptions of his pain. (Doc. #18). After

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considering this entire body of evidence, including plaintiff’s testimony regarding pain management,

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James C. Mahan
U.S. District Judge

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the ALJ found that plaintiff’s account of his pain lacked credibility. See Celaya v. Halter, 332 F. 3d

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117, 1181 (9th Cir. 2003) (holding that pain complaints were properly rejected where the ALJ

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“reasonably noted” evidence that pain had come under control); Morgan, 169 F.3d at 599 (upholding

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adverse credibility determination where ALJ properly accounted for physician’s report of

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improvement with medication). Therefore, the court finds that the magistrate judge did not err in

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recommending the affirmation of the ALJ’s finding that plaintiff was less than fully credible.

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In his third objection, plaintiff claims that the magistrate judge erred in recommending the

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court affirm the ALJ’s evaluation of the medical evidence. Specifically, the plaintiff argues that the

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ALJ erred in choosing the state reviewer’s form rather than favoring the treating physician’s opinion,

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thereby leading to the denial of the claim. (Doc. #20). However, it is clear that the ALJ considered

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the record as a whole and adopted a combination of the differing medical evaluations to the extent

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they were consistent with each other. See Magallanes v. Bowen, 881 F.2d 747, 751, 753 (9th 1989)

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(holding that the ALJ “may disregard the treating physician’s opinion whether or not it is

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contradicted” and that a treating physician’s opinion is not necessarily conclusive as to the physical

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condition of the claimant or the ultimate issue of a claimant’s social security disability). Therefore,

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the magistrate judge did not err in affirming the ALJ’s evaluation of the medical evidence.

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Plaintiff’s final objection is that the magistrate judge improperly recommended the court

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affirm the ALJ’s reliance on vocational expert testimony in determining that, although plaintiff could

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no longer perform his past relevant work, a significant number of alternate jobs existed that he could

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perform with his residual functional capacity.

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Plaintiff takes issue with this finding for the first time in his reply in support of his

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objections. The court rejects this new argument as it was not raised in his initial objections. See, e.g.,

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Eberle v. City of Anaheim, 901 F.2d 814, 817-18 (9th Cir. 1990) (noting new issues cannot be raised

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in a reply); United States v. Bohn, 956 F.2d 208 (9th Cir. 1992) (same).

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After conducting a de novo review of the portions of the report properly objected to, the court

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hereby ADOPTS the magistrate judge’s findings in full.

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James C. Mahan
U.S. District Judge

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and

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recommendation of Magistrate Judge Ferenbach (doc. # 14) be, and the same hereby are, ADOPTED

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in their entirety.

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IT IS FURTHER ORDERED that plaintiff’s motion to remand (doc. #10) be, and the same
hereby is, DENIED.

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IT IS FURTHER ORDERED that defendant’s motion for summary judgment (doc. #12) be,

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and the same hereby is, GRANTED. The clerk shall enter judgment accordingly and close the case.

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DATED May 27, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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