Farias, III v. Colvin

Filing 18

ORDER ADOPTING AND ACCEPTING Report and Recommendation (ECF No. 15 ) : Plaintiff's motion for remand and reversal (ECF No. 11 ) is granted and defendant's cross-motion to affirm (ECF No. 13 ) is denied. This action is remanded for the calculation and award of benefits. Clerk shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 6/7/2016. (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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MANUEL FARIAS, III,

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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security )
Administration,
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Defendant.
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_________________________________ )

3:15-cv-00032-HDM-WGC
ORDER

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The court has considered the report and recommendation of the

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United States Magistrate Judge (ECF No. 15) filed on February 1, 2016,

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in which the Magistrate Judge recommends that this court enter an

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order granting the plaintiff’s motion for reversal and remand (ECF No.

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11), denying the defendant’s cross-motion to affirm (ECF No. 13), and

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ordering this matter be remanded for the calculation and award of

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benefits.

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On February 16, 2016, the defendant filed an objection to the

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report and recommendation.

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plaintiff filed an opposition to the defendant’s objection.

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17).

(ECF No. 16).

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On February 29, 2016, the
(ECF No.

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The court has made a review and determination in accordance with

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the requirements of 28 U.S.C. § 636 and applicable case law. One of

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the defendant’s principle objections to the report and recommendation

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is that plaintiff’s past relevant work as a porter was previously

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adjudicated,

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However, the Administrative Law Judge (ALJ) specifically held that the

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presumption of continuing disability does not apply in this case “due

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to

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considered in the prior decision.”

the

making

additional

that

severe

determination

impairment

of

administratively

adjustment

(AR 13).

final.

disorder

not

As such, the issue of

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whether plaintiff’s past work as a porter qualifies as past relevant

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work was properly raised by the plaintiff.

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F.2d 691, 693 (9th Cir. 1988)(holding that res judicata does not bar

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reconsideration of disability when an applicant alleges changed

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circumstances indicating a greater disability).

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See Chavez v. Bowen, 844

The parties agree that the monthly substantial gainful activity

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amount for non-blind individuals for 2009 was $980.

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that it was not reasonable for the ALJ to rely on plaintiff’s

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inconsistent self-reports of his earnings, over official earnings

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records that show plaintiff received $877.50 from Casino Fandango in

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2009.

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$133.00 plaintiff received from High Sierra Food & Beverage, Inc., was

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earned in the same month that the plaintiff worked for Casino

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Fandango.

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supported by substantial evidence in the record and that the ALJ erred

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in finding that plaintiff’s past work as a porter was performed at the

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substantial gainful activity level.

The court finds

Additionally, it has never been shown or alleged that the

Thus, the court concludes that the ALJ’s decision was not

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Accordingly, with good cause appearing, the court hereby ADOPTS

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AND ACCEPTS the report and recommendation of the United States
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Magistrate Judge (ECF No. 15).

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remand and reversal (ECF No. 11) is granted and defendant’s cross-

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motion to affirm (ECF No. 13) is denied. This action is remanded for

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the calculation and award of benefits.

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enter judgment accordingly.

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IT IS SO ORDERED.

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DATED: This 7th day of June, 2016.

Therefore, plaintiff’s motion for

The Clerk of the Court shall

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____________________________
UNITED STATES DISTRICT JUDGE

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