Deborah Kessler v. Michael J. Astrue

Filing 28

ORDER. The court ACCEPTS AND ADOPTS the 21 report and recommendation of the United States Magistrate Judge. Plaintiff's motion to remand 15 is DENIED and the defendant's cross-motion for summary judgment 17 is GRANTED.IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 8/29/2012. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEBORAH J. KESSLER,

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Plaintiff,
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vs.
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MICHAEL J. ASTRUE,
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Defendant.
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_________________________________ )

3:11-cv-00321-HDM-VPC
ORDER

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The court has considered the report and recommendation of the
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United States Magistrate Judge (#21) filed on May 11, 2012, in
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which the magistrate judge recommends that this court deny the
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plaintiff’s motion to remand (#15) and grant the defendant’s cross18
motion for summary judgment (#17).

The plaintiff has filed

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objections to the report and recommendation (#24), and the
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defendant has responded (#27).
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The court has considered the pleadings and memoranda of the
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parties and other relevant matters of record and has made a review
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and determination in accordance with the requirements of 28 U.S.C.
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§ 636 and applicable case law, the court hereby accepts and adopts
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the report and recommendation of the United States Magistrate Judge
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(#21).

In response to the plaintiff’s objections, the court notes

the following.
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First, plaintiff argues that no evidence supports the

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conclusion that she performed “past relevant work” as an espresso

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attendant and a room service cashier.

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law judge (“ALJ”) was required to adopt the earlier administrative

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finding as to the plaintiff’s work experience absent “new and

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material evidence relating to” that finding.

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742758, at *3.

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evidence relating to her prior work experience.

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therefore bound by the earlier determination on the issue of “past

However, the administrative

AR 97-4(9), 1997 WL

Plaintiff has not identified any new and material
The ALJ was

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relevant work.”1

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required to assess whether the earlier determination of her prior

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work experience was correct.

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suggesting that earlier administrative findings entitled to

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preclusive effect may be reexamined for accuracy in a subsequent

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claim for benefits absent “new and material evidence relating to”

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those findings.

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that new and material evidence exists on this issue, the ALJ’s

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reliance on the earlier determination was not erroneous.

Plaintiff also argues that a complete record is

However, plaintiff cites no law

As plaintiff has not identified, or even argued,

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Second, plaintiff argues that the ALJ’s performance of the

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mandatory psychiatric review technique “in an extremely cursory

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manner” was insufficient under Keyser v. Commissioner of Social

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Security, 648 F.3d 721 (9th Cir. 2011).

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ALJ both described the evidence relevant to plaintiff’s claim of

The court disagrees.

The

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The court notes that while the ALJ adopted the earlier finding that
espresso attendant and room service cashier were “past relevant work,” he
made an independent determination as to whether plaintiff could perform
those positions in light of her residual functional capacity.

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mental impairment and made explicit findings with respect to each
of the four functional areas.
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The court finds this sufficient to

satisfy both the regulation, 20 C.F.R. § 404.1520a, and Keyser.
In accordance with the foregoing, the plaintiff’s motion to

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remand (#15) is DENIED and the defendant’s cross-motion for summary

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judgment (#17) is GRANTED.

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IT IS SO ORDERED.

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DATED: This 29th day of August, 2012.

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____________________________
UNITED STATES DISTRICT JUDGE

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