Cortez v. Colvin

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION re 15 Objections to Report and Recommendation filed by Carolyn W Colvin. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LENA CORTEZ,
Plaintiff,

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CASE NO. 15-0373 RJB
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
CAROLYN COLVIN, Commissioner of
Social Security,

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Defendant.

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This matter comes before the Court on the Report and Recommendation of U.S.
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Magistrate Judge J. Richard Creatura. Dkt. 14. The Court has considered the Report and
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Recommendation, objections, and the remaining file.
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On December 9, 2015, the Report and Recommendation was issued, recommending that
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this case for social security disability benefits be remanded for further proceedings. Dkt. 14.
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The facts and procedural history are in the Report and Recommendation (Dkt. 14, at 1-4) and are
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adopted here.
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ORDER ADOPTING REPORT AND
RECOMMENDATION- 1

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Report and Recommendation. The Report and Recommendation urges a finding that

2 the Commissioner erred in omitting lupus and chronic pain as severe impairments and failed to
3 include these impairments in the formulation of Plaintiff’s residual functioning capacity
4 (“RFC”). Dkt. 14.
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Objections. The Commissioner objects, arguing that the Administrative Law Judge’s

6 (“ALJ”) decision regarding whether Plaintiff had lupus and chronic pain was a finding of fact
7 and that as such, the Court can only review to determine “whether the record ‘yields such
8 evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ.’” Dkt.
9 15, at 7. (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)). The Commissioner
10 argues that there is no showing that failing to find that these impairments were severe resulted in
11 harm to Plaintiff. Id.
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Discussion. The Report and Recommendation should be adopted and the case remanded

13 for further proceedings. The objections do not provide a basis to reject the Report and
14 Recommendation.
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As stated in the Report and Recommendation, the ALJ found that Plaintiff’s lupus was a

16 “suspicion” and did not reference Plaintiff’s chronic pain. Dkt. 14, at 6 (citing AR 35). The ALJ
17 did not find these impairments severe. Id. The Report and Recommendation notes that not only
18 did Plaintiff’s treating doctor diagnose her with markedly severe lupus and chronic pain based on
19 objective medical findings (including a positive antinuclear antibodies screening test), her doctor
20 noted the impairments caused Plaintiff symptoms including “body pain, fatigue, dizziness,
21 shortness of breath and swollen joints.” Id. Accordingly, “a reasonable mind” could not accept
22 the conclusions reached by the ALJ regarding whether these impairments were severe.
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ORDER ADOPTING REPORT AND
RECOMMENDATION- 2

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Further, the Report and Recommendation noted Plaintiff’s treating doctor found that

2 these severe impairments resulted in marked limitations which were omitted from the RFC. Dkt.
3 14, at 8. Her treating doctor opined as a result of all her impairments that Plaintiff would be
4 limited to lifting less than ten pounds, standing 30 minutes, and sitting 15 minutes. Id., at 9
5 (citing AR 707). As stated in the Report and Recommendation, “by omitting lupus and chronic
6 pain from Plaintiff’s list of severe impairments, the ALJ failed to consider all of Plaintiff’s
7 limitations and arrived at an incomplete RFC.” Id. The undersigned concurs and holds that the
8 case should be remanded.
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ORDER

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

The Report and Recommendation (Dkt. 14) IS ADOPTED; and

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This case is REMANDED for further proceedings.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record,

13 Judge Creatura, and to any party appearing pro se at said party’s last known address.
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Dated this 12th day of January, 2016.

A

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ROBERT J. BRYAN
United States District Judge

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ORDER ADOPTING REPORT AND
RECOMMENDATION- 3