Mandell v. Astrue

Filing 29

ORDER Accepting and Adopting 25 Report and Recommendation in Full. It is Further Ordered that 21 Motion to Affirm is Granted. It is Further Ordered that 18 Motion to Remand is Denied. Clerk is Instructed to Enter Judgment Accordingly and Close the Case. Signed by Chief Judge Gloria M. Navarro on 3/10/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EVE T. MANDELL,
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Plaintiff,
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vs.
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MICHAEL J. ASTRUE, Commissioner of )
Social Security,
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Defendant.
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Case No.: 2:13-cv-0012-GMN-PAL
ORDER

Pending before the Court is the Report and Recommendation (“R&R”) of United States

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Magistrate Judge Peggy A. Leen. (ECF No. 25). Plaintiff Eve Mandell filed an Objection,

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(ECF No. 26), to which Defendant Michael J. Astrue responded, (ECF No. 27). For the reasons

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discussed below, the Court will accept and adopt Judge Leen’s R&R in full.

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I.

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BACKGROUND
Plaintiff brings this action against Defendant Michael Astrue in his capacity as the

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Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g). (Compl., ECF No. 1-1).

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Plaintiff seeks judicial review of a final decision denying her claim for supplemental security

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income (“SSI”). (Id.).

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Plaintiff filed a claim for SSI benefits on August 7, 2006, which was denied initially and

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upon reconsideration. (R&R 1:17-19, ECF No. 25). Plaintiff requested a hearing before an

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Administrative Law Judge (“ALJ”), which was held on September 24, 2009. (Id. at 1:20-22).

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On February 12, 2010, the ALJ issued an unfavorable decision denying Plaintiff’s claim for

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benefits. (Id. at 1:21-22). Plaintiff timely requested that the Appeals Council review the ALJ’s

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decision. (Id. at 1:22-23). This request was subsequently granted, and on February 10, 2011,

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the Appeals Council reversed and remanded the case for further proceedings. (Id. at 1:23-24).

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The case was considered by a different ALJ on remand, who issued a decision on September

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23, 2011, finding that Plaintiff was not disabled and therefore not entitled to benefits. (Id. at

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2:1-3). Plaintiff filed a request for the Appeals Council to review this decision, which was

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denied on November 6, 2012. (Id. at 2:5-6).

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This action was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and District of Nevada Local Rule IB 1-4. In her R&R, Judge Leen

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recommended that this Court enter an order granting the Motion to Affirm, (ECF No. 21), and

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denying the Motion to Remand, (ECF No. 18).

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II.

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LEGAL STANDARD
A party may file specific written objections to the findings and recommendations of a

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United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);

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D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo

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determination of those portions of the Report to which objections are made. Id. The Court may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).

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III.

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DISCUSSION
This court may set aside the Social Security Commissioner’s denial of disability benefits

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only when the findings of the ALJ are based on legal error or are not supported by substantial

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evidence in the record as a whole. Social Security Act §§ 216(i), 223, (codified at 42 U.S.C. §§

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416(i), 423); Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001). “Substantial

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evidence means such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation

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omitted). “Where evidence is susceptible to more than one rational interpretation, it is the

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ALJ’s conclusion that must be upheld.” Id.

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Here, Judge Leen found that the ALJ’s decision was supported by substantial evidence,

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and that the ALJ properly assessed Plaintiff’s credibility as well as the appropriate weight to be

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given to the opinions of Dr. Carolyn McKelvie, Plaintiff’s treating physician. (R&R 26:13-

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29:9).1 Having reviewed Plaintiff’s objections de novo, the Court finds no basis on which to

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reject Judge Leen’s findings and recommendations.

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IV.

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IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 25), be
ACCEPTED and ADOPTED in full.

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IT IS FURTHER ORDERED that the Motion to Affirm, (ECF No. 21), is
GRANTED.

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CONCLUSION

IT IS FURTHER ORDERED that the Motion to Remand, (ECF No. 18), is DENIED.
The Clerk is instructed to enter judgment accordingly and close the case.

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DATED this 10th day of March, 2015.

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______________________________
Gloria M. Navarro, Chief Judge
United States District Court

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Plaintiff argues that the ALJ erred by failing to “recontact [Dr. McKelvie] for clarification” prior to making an
adverse finding. (Pl.’s Obj. 3:19-21, ECF No. 26). However, Ninth Circuit precedent clearly holds that an ALJ
need only state “specific and legitimate reasons supported by substantial evidence in the record” in order to reject
the opinion of a treating physician. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation
omitted). Therefore, the Court finds that the ALJ did not err by rejecting Dr. McKelvie’s opinion without
“recontacting” her.
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