Christopherson v. Colvin

Filing 37

ORDERED that the # 32 R&R is accepted and adopted. Plaintiff's # 17 Motion to Remand is denied and Defendant's # 29 Cross-Motion to Affirm is granted. Clerk is directed to enter final judgment in favor of Defendant Carolyn W. Colvin, Commissioner of Social Security. Signed by Judge Miranda M. Du on 3/4/2014. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LEWIS D. CHRISTOPHERSON,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,

Case No. 3:13-cv-00114-MMD-VPC
ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE

Defendant.

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Before the Court is Magistrate Judge Valerie P. Cooke’s Report and

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Recommendation (“R&R”) (dkt. no. 32) regarding Plaintiff Lewis D. Christopherson’s

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Motion for Remand and/or Reversal (“Motion”) (dkt. no. 17) and Defendant Carolyn W.

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Colvin’s Opposition and Cross-Motion to Affirm (dkt. nos. 28, 29). Plaintiff replied to the

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Opposition and Cross-Motion (dkt. no. 30). Magistrate Judge Cooke issued the R&R on

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March 24, 2014, concluding that substantial evidence supports the Administrative Law

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Judge’s (“ALJ”) findings. (Dkt. no. 32 at 18-19.) Plaintiff timely filed an objection (dkt. no.

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33) to which Defendant responded (dkt. no. 34).

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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 judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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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). In light of Plaintiff’s

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objection, the Court has engaged in a de novo review to determine whether to adopt

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Magistrate Judge Cooke’s R&R.

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The R&R finds that the ALJ’s decision to uphold the denial of Plaintiff’s disability

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claims was supported by substantial evidence in the record. The R&R provides a

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thorough and detailed explanation of the ALJ’s decision that can be used to address

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each of Plaintiff’s objections, which reiterate the arguments he raised in the Motion.

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First, Plaintiff argues that the ALJ failed to properly assess his residual functional

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capacity (“RFC”) because the ALJ gave improper weight to the opinions of a consultative

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examiner and a state agency reviewing physician. (Dkt. no. 33 at 3.) Plaintiff contends

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that the consultative examiner failed to review his entire medical record in carrying out

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his independent examination. (Id. at 4.) Plaintiff further argues that both the consultative

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examiner and the reviewing physician should have considered medical findings that

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were made after their examinations. (Id. at 4-5). Plaintiff, however, does not cite to any

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authority that requires examining physicians to review subsequent medical evidence.

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Rather, it is the SSA that must determine an applicant’s RFC by assessing the whole

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record, including all evidence and medical reports. 20 C.F.R. § 404.1545(a); see

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Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). The R&R discusses that in

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determining the RFC, the ALJ considered the entire record in addition to the subsequent

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medical findings of Plaintiff’s treating physicians. (Dkt. no. 32 at 8, 10-12.) The R&R

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concludes that the ALJ did not err in considering findings from the consultative examiner

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and the state agency physician as part of the RFC determination. (Id. at 13.) The Court

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agrees with the Magistrate Judge’s conclusion that substantial evidence supports the

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RFC determination.

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Second, Plaintiff contends that the ALJ improperly evaluated the credibility of his

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subjective complaints. (Dkt. no. 33 at 6-8.) The R&R notes that the ALJ found

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inconsistencies between Plaintiff’s subjective complaints regarding the severity of his

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symptoms, Plaintiff’s testimony about his daily activities, and the medical evidence. (Dkt.

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no. 32 at 16-18.) The Court agrees with the Magistrate Judge’s conclusion that these

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inconsistencies adequately support the ALJ’s credibility determination. (See id. at 18.)

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The R&R recommends that the Court deny Plaintiff’s Motion for Remand and/or

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Reversal (dkt. no. 17) and grant Defendant’s Cross-Motion to Affirm (dkt. no. 29). Upon

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review of the R&R and the record in this case, the Court determines that it is appropriate

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to adopt the R&R in full.

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It is hereby ordered that the R&R (dkt. no. 32) is accepted and adopted. Plaintiff’s

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Motion to Remand and/or Reverse (dkt. no. 17) is denied and Defendant’s Cross-Motion

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to Affirm (dkt. no. 29) is granted. The Clerk is directed to enter final judgment in favor of

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Defendant Carolyn W. Colvin, Commissioner of Social Security, pursuant to this Order.

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DATED THIS 4th day of March 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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