Ramirez v. Colvin

Filing 31

ORDER DISMISSING CASE. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and recommendation of Magistrate Judge Koppe, 26 , be, and the same hereby are, ADOPTED in their entirety. IT IS FURTHER ORDERED that plaintiffs motion to remand, 19 , be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that defendants cross-motion to affirm, 23 , be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that this action be, and the same hereby is, DISMISSED. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 6/23/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MANUEL R. RAMIREZ,

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Plaintiff(s),

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Case No. 2:13-CV-440 JCM (NJK)
ORDER

v.
CAROLYN W. COLVIN,

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Defendant(s).

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

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(Doc. # 26). Plaintiff Manuel Ramirez (hereinafter “plaintiff”) filed objections to the report and

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recommendation, (doc. # 29), and defendant Carolyn Colvin (hereinafter “defendant”) filed a

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response to plaintiff’s objections, (doc. # 30).

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I.

Background

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On July 15, 2010, plaintiff filed an application for disability benefits, alleging that he

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became disabled on April 15, 2010. The Social Security Administration (“SSA”) denied his

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claims. On March 21, 2011, plaintiff filed a request for a hearing before an administrative law

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judge (“ALJ”). (Doc. # 26).

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On January 10, 2012, plaintiff appeared for a hearing before the ALJ. On January 27, 2012,

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the ALJ issued an unfavorable decision. The ALJ concluded that from April 15, 2010, through

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the date of his decision, plaintiff was not under a disability as defined by the Social Security Act.

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On December 21, 2012, the appeals council denied plaintiff’s request for review. (Doc. # 26).

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On March 15, 2013, plaintiff brought the instant action seeking review of the social security

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commissioner’s denial of plaintiff’s application for disability insurance benefits. (Docs. # 1, 6).

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On March 10, 2014, plaintiff filed a motion for reversal and/or remand. (Doc. # 19). On March

James C. Mahan
U.S. District Judge

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22, 2014, defendant filed a cross-motion to affirm. (Doc. # 23). Upon review of the parties’

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motions, the magistrate judge recommended that plaintiff’s motion be denied and defendant’s

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cross-motion be granted. (Doc. # 26).
On April 27, 2015, plaintiff filed the instant objections. (Doc. # 29). On May 7, 2015,

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defendant filed her response to plaintiff’s objections. (Doc. # 30).
II.

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Legal Standard

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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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LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the

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court is required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.”

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Id.

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Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of

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a magistrate judge within fourteen days from the date of service of the findings and

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recommendations. LR IB 3-2(a). Similarly, Local Rule 7-2 provides that a party must file an

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opposition to a motion within fourteen days after service of the motion. LR 7-2.

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III.

Discussion
Plaintiff contends that the ALJ (1) improperly rejected the examining physician’s medical

opinion, and (2) formulated an incomplete hypothetical to the vocational expert. (Doc. # 26).

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Plaintiff takes issue with the ALJ’s reliance on the opinions of Dr. Araza, the state agency’s

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psychological consultant, over those of Dr. Jones, the examining physician. Plaintiff contends that

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Judge Koppe erred in finding that the ALJ’s decision was supported by substantial evidence. (Doc.

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# 29). The court disagrees.

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While an examining physician’s opinion should be afforded deference in the disability

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determination, it may not be conclusive. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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603-04 (9th Cir. 1999). Where a nontreating doctor’s opinion contradicts that of the examining

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physician, the latter “may be rejected only if the ALJ gives specific, legitimate reasons for doing

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U.S. District Judge

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so that are based on substantial evidence in the record.” Andrews v. Shalala, 53 F.3d 1035, 1041-

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42 (9th Cir. 1995) (concluding that ALJ’s reliance on nontreating doctor’s opinion met this

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standard); see also Morgan, 169 F.3d at 601-03 (same).

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In his decision, the ALJ explicitly rejected Dr. Jones’s conclusions on the grounds that they

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were not supported by the record as a whole. In particular, the ALJ noted that relevant conflicting

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evidence arose after Dr. Jones examined plaintiff, weakening the force of Dr. Jones’s opinion.

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Administrative Record (“A.R.”) at 39.

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Plaintiff argues that the ALJ’s reasoning on this issue was faulty because neither Dr. Araza

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nor Dr. Jones reviewed the subsequently-procured records. According to plaintiff, the ALJ

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therefore could not properly afford Dr. Araza’s opinion more weight. (Doc. # 29).

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Plaintiff mischaracterizes the ALJ’s decision on this point. The ALJ declined to adopt Dr.

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Jones’s opinion on plaintiff’s disability status because the doctor’s conclusions were inconsistent

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with evidence in the record, not simply because Dr. Jones had not considered the late evidence.

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A.R. at 39. Accordingly, reversal is not appropriate on this basis.

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Plaintiff next suggests that “the subsequent records are insubstantial, and fail to counter

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Dr. Jones [sic] opinions.” Plaintiff emphasizes that these documents were “not psychiatric

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records” but rather “general observations made during a general follow-up visit.” (Doc. # 26).

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These facts are inconsequential. Regardless of the type and nature of the evidence, the ALJ

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properly considered it and reached his decision based on the record as a whole.

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Plaintiff also relies on certain aspects of his treatment record in arguing for reversal or

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remand. Specifically, plaintiff points to a physician’s prescription of a psychotropic medication

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for plaintiff’s depression as well as documentation of “persisting pain symptoms,” for which he

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was also prescribed medicine. According to plaintiff, these exhibits show that he was obviously

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disabled. (Doc. # 29).

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Again, these facts are not conclusive as to plaintiff’s legal disability status. As defendant

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highlights, the court may not reweigh the factual record to determine whether a different result

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than that reached by the ALJ is conceivable. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005);

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Jamerson v. Chater, 112 F.3d 1064, 1067-68 (9th Cir. 1997). By contrast, the court must uphold

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U.S. District Judge

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the ALJ’s decision if it was supported by substantial evidence and was not clearly erroneous.

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Burch, 400 F.3d at 679; Jamerson, 112 F.3d at 1067-68. The court finds that the ALJ’s decision

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is adequately grounded in the evidence, and should be upheld.

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Plaintiff further argues that the ALJ’s hypothetical was improperly formulated because it

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did not account for plaintiff’s mental limitation. (Doc. # 26). With regard to this objection,

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plaintiff contends that Judge Koppe inappropriately failed to note why Social Security Ruling

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(“SSR”) 96-8p and the Ninth Circuit’s opinion in Hutton v. Astrue, 491 F. App’x 850 (9th Cir.

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2012), do not apply.

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Notably, plaintiff misstates the contents of Judge Koppe’s report and recommendation.

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At footnote 3 of her report and recommendation, Judge Koppe specifically addressed Hutton,

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concluding that it was “inapposite here given that the ALJ did consider the non-severe limitations

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in determining plaintiff’s RFC.” (Doc. # 26). The court agrees.

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In Hutton, the plaintiff appealed the district court’s decision affirming the ALJ’s finding of

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no disability. 491 F. App’x at 850. The Ninth Circuit reversed and remanded in a memorandum

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disposition, explaining that the ALJ erred in failing to consider the plaintiff’s PTSD in assessing

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the plaintiff’s residual functional capacity (“RFC”). Id.

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By contrast, the record here shows that the ALJ considered all of plaintiff’s impairments

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before concluding that plaintiff did not meet the requisite definition of disability. A.R. at 40.

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Hutton is therefore distinguishable from the instant case. See Sisco v. Colvin, No. 13-cv-01817-

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LHK, 2014 WL 2859187 at *7 (rejecting identical argument by plaintiff); Webb v. Colvin, No.

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2:12-cv-00592-GMN-PAL, 2013 WL 5947771 at *11 (D. Nev. Nov. 5, 2013) (finding plaintiff’s

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reliance on Hutton to be misplaced for similar reasons).

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Moreover, while Judge Koppe did not explicitly reject plaintiff’s arguments relating to SSR

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96-8p in her report and recommendation, that ruling is not controlling in this case and provides no

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basis for reversal.

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Plaintiff contends that under SSR 96-8p, “[i]n some cases, even a mild or nonsevere mental

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limitation might make the difference between disability and nondisability.” (Doc. # 29). SSR 96-

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8p acknowledges that mental limitations should be considered, in conjunction with other

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U.S. District Judge

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impairments, when assessing RFC. See SSR 96-8p, 1996 WL 374184 (July 2, 1996); Orn v.

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Astrue, 495 F.3d 625, 635-36 (9th Cir. 2007) (noting that SSA rulings serve as precedent for SSA

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case adjudication).

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SSR 96-8p does not undermine the ALJ’s conclusion here. The ALJ considered all relevant

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evidence, including plaintiff’s mental impairment, and concluded that plaintiff was not entitled to

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benefits. A.R. at 40-47. Again, reversal or remand is not warranted absent a finding that the ALJ’s

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decision was clearly erroneous or lacked supporting substantial evidence. Burch, 400 F.3d at 679;

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Jamerson, 112 F.3d at 1067-68.

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The court agrees with Judge Koppe’s conclusion that the ALJ’s hypothetical was not

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improper. The ALJ may pose a hypothetical to a vocational expert incorporating the claimant’s

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RFC. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). In the instant

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case, the ALJ considered all of plaintiff’s impairments in fashioning the RFC, and properly

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incorporated the RFC into the hypothetical. A.R. at 41, 67-68. Accordingly, the court finds that

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the ALJ did not err on these grounds.

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Having reviewed the parties’ filings and the record de novo, the court finds that the ALJ’s

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decision was supported by substantial evidence and should be affirmed. Contrary to plaintiff’s

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contentions, the ALJ articulated specific reasons for rejecting Dr. Jones’s opinion and considered

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all the evidence in crafting plaintiff’s RFC. As a result, the court concurs with Judge Koppe’s

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report and recommendation and will adopt them in their entirety.

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IV.

Conclusion

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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 Koppe, (doc. # 26), be, and the same hereby are, ADOPTED

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in their entirety.

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James C. Mahan
U.S. District Judge

IT IS FURTHER ORDERED that plaintiff’s motion to remand, (doc. # 19), be, and the
same hereby is, DENIED.
IT IS FURTHER ORDERED that defendant’s cross-motion to affirm, (doc. # 23), be, and
the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that this action be, and the same hereby is, DISMISSED.

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The clerk shall enter judgment accordingly and close the case.

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DATED June 23, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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