Stilwell v. Berryhill

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 14 Objections to Report and Recommendation filed by Melissa Ann Stilwell. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MELISSA ANN STILWELL,
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Plaintiff,
v.

CASE NO. C17-5625 BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION

NANCY BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 13), and

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Plaintiff Melissa Stilwell’s (“Stilwell”) objections to the R&R (Dkt. 14).

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On January 25, 2018, Judge Fricke issued the R&R recommending that the Court

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affirm Defendant’s decision to deny benefits. Dkt. 13. On February 9, 2018, Stilwell

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filed objections. Dkt. 14. On February 13, 2018, the Government responded and moved

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to strike Stilwell’s objections as untimely. Dkt. 15. 1 On February 16, 2018, Stilwell

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responded. Dkt. 16.

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The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or

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The motion to strike is denied because the objections were timely. Although the R&R is dated
January 25, 2018, the Clerk posted it on January 26, 2018, which is when it was electronically served.

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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In this case, Stilwell objects to the R&R because the R&R seems to internally

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conflict. Stilwell’s appeal attacks the Administrative Law Judge’s (“ALJ”) partial

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rejection of Stilwell’s treating physician’s opinion. Judge Fricke concluded that the ALJ

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properly discounted the opinion because the record did not contain sufficient medical

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evidence to support the severity of Stilwell’s disabilities. Dkt. 13 at 5–8. Judge Fricke

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also addressed Stilwell’s objection to the ALJ discounting this same physician’s opinion

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on the basis of a lack of mental health treatment record. Judge Fricke concluded that,

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while this may have been error, the ALJ provided other sufficient reasons for discounting

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the opinion. Id. at 8–9.

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Stilwell objects arguing that Judge Fricke’s conclusions seem to contradict one

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another. First, she concludes that there is insufficient medical evidence to support the

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severity of the limitations, then she concludes that the lack of a medical health treatment

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record is not Stilwell’s fault. Dkt. 14. The Court agrees that it is difficult and usually

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error to fault a person suffering from mental health issues for not seeking or maintaining

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mental health treatments. However, the lack of medical evidence is a sufficient reason to

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discount a treating physician’s opinion. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1195 (9th Cir. 2004) (“an ALJ may discredit treating physicians’ opinions that are

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conclusory, brief, and unsupported by the record as a whole, . . . or by objective medical

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findings.”) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). What is

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improper is finding that the claimant lacks credibility because she failed to pursue

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treatment. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)

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(“although a conservative course of treatment can undermine allegations of debilitating

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pain, such fact is not a proper basis for rejecting the claimant’s credibility”) (citing Orn v.

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Astrue, 495 F.3d 625, 638 (9th Cir. 2007)). Lack of medical evidence to support an

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opinion and adverse credibility determinations are two different issues. Regarding the

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former, the Court agrees with Judge Fricke that the ALJ did not commit error.

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Therefore, the Court having considered the R&R, Stilwell’s objections, and the
remaining record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

The ALJ’s decision is AFFIRMED; and

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(3)

The Clerk shall enter a JUDGMENT and close the case.

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Dated this 29th day of March, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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