Danielson v. Commissioner Social Security Administration
ORDER: Adopting Judge Russo's Findings and Recommendation 18 . The Commissioner's decision is supported by substantial evidence in the record and is therefore affirmed. Signed on 5/31/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:16-cv-0694-JR
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Magistrate Judge Jolie Russo filed a Findings and Recommendation (ECF No. 18), and
the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b). Plaintiff
filed objections to the Findings and Recommendation. Accordingly, I have reviewed the file of
this case de novo. See 28 U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). I conclude the report is correct.
1 – ORDER
Plaintiff objected to the F&R arguing the Magistrate Judge engaged in post-hoc
rationalization. A court may not “affirm the decision of an agency on grounds that the agency did
not invoke in making its decision.” Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) citing
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). I find that Judge Russo did not engage in posthoc rationalization when recommending to uphold the ALJ’s credibility analysis on the ALJ’s
findings and determination.
The ALJ rejected plaintiff’s subjective symptom testimony that he suffers from
consistent, debilitating confusion as not credible (Tr. 63-64) because, as the ALJ found,
plaintiff’s testimony lacked objective support and conflicted with the medical record. Id. The
ALJ’s credibility analysis described plaintiff as receiving only “routine, conservative and nonemergent treatment since the alleged onset date.” Tr. 65. The ALJ considered plaintiff’s prison
treatment records showing normal mental status examinations, records of Emily Harvey, M.D.
showing normal mood, affect, behavior, judgment and thought content, and other repeated
normal mental findings. Tr. 65-66. These findings support the ALJ’s credibility determination
because they contradict plaintiff’s testimony.
Judge Russo’s analysis is also correct with regards to the weight given to Mr. Cheney’s
opinion and the cognitive difficulties incorporated in the RFC. First, the ALJ gave little weight to
Mr. Cheney’s opinion because Mr. Cheney relied heavily on the plaintiff’s subjective symptom
reports in reaching his conclusions. Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999).
Because the ALJ properly discredited plaintiff’s subjective symptom reports, the ALJ had a
germane reason to reject Mr. Cheney’s opinion based on plaintiff’s discredited statements.
Second, the ALJ correctly incorporated plaintiff’s credible cognitive limitations into the RFC by
2 – ORDER
limiting him to simple, repetitive, routine tasks requiring no more than occasional interaction
with co-workers and the general public. Tr. 62-63.
I adopt the Findings and Recommendation (ECF No. 18). The Commissioner’s decision
is supported by substantial evidence in the record and is therefore AFFIRMED.
IT IS SO ORDERED.
DATED this 31st day of May, 2017.
_____/s/ Michael J. McShane_____
Michael J. McShane
United States District Judge
3 – ORDER
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