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Myres v. Colvin

United States District Court, D. Oregon

September 24, 2014

SHANE ROBERT ERIC MYRES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Kathryn Tassinari and Brent Wells, HARDER, WELLS, BARON & MANNING, P.C., 474 Willamette Street, Suite 200, Eugene, OR 97401. Of Attorneys for Plaintiff.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States Attorney, U.S. ATTORNEY'S OFFICE, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204; Gerald J. Hill, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

United States Magistrate Judge John V. Acosta issued Findings and Recommendation ("F&R") in this case on July 2, 2014. Dkt. 19. Judge Acosta recommended that the Commissioner's final decision be affirmed and the case be dismissed. Plaintiff Shane Myres timely filed objections to the Magistrate's Findings and Recommendation. Dkt. 23. Defendant responded to counsel's objections. Dkt. 24. Mr. Myres objects to the F&R's findings that: (1) the ALJ provided clear and convincing reasons for rejecting Mr. Myres's testimony; (2) the ALJ properly rejected the opinion of Christopher Wallis PAC, Mr. Myres's treating physician's assistant; (3) Mr. Myres retains the ability to perform work in the national economy; and (4) the ALJ properly evaluated Mr. Myres's mental impairments at steps two and four of the sequential analysis.

Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. ยง 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3).

For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report[.]"); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge[] sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that "[w]hen no timely objection is filed, " the Court review the magistrate's recommendations for "clear error on the face of the record."

The Court has reviewed de novo those portions of the F&R to which Mr. Myres has objected, as well as Mr. Myres's objections and the Commissioner's response. The Court agrees with Judge Acosta's reasoning and conclusions regarding the ALJ's decision to not fully credit the opinion of Mr. Wallis and the ALJ's decision regarding Mr. Myres's mental impairments and adopts those portions of the F&R (Sections II.B and II.D). For the reasons discussed below, however, the Court declines to adopt the portions of the F&R relating to the ALJ's assessment of Mr. Myres's credibility and finding that Mr. Myres can perform work in the national economy (Sections II.A and II.C). The decision of the Commissioner is reversed and the case is remanded for an award of benefits.

BACKGROUND

A. The Application

Mr. Myres filed an application for benefits on June 9, 2009, alleging an onset date of November 15, 2008. He alleged disability due to Crohn's disease and depression. The application was denied initially, on reconsideration, and by the Administrative Law Judge ("ALJ") after a hearing. The Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner.

B. The ALJ's Decision

At step one, the ALJ found that Mr. Myres has not engaged in substantial gainful activity since November 15, 2008, the alleged date of disability. AR 12. At step two, the ALJ determined that Mr. Myres suffered from the severe impairment of Crohn's disease. Id. The ALJ found that Mr. Myres's medically determinable mental impairments of depression and anxiety were nonsevere. AR 13. The ALJ determined that Mr. Myres had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but that he required convenient access to bathroom facilities. AR 14. The ALJ determined Mr. Myres could not perform past relevant work as a roofer because, as the vocational expert ("VE") testified, that this job would not provide an individual with ready access to a bathroom. AR 17. Considering Mr. Myres's age, education, work experience, and RFC, and based on the testimony of the VE, the ALJ found that there were jobs that exist in significant numbers in the national economy that Mr. Myres can perform, such as hospital cleaner, material handler, and hand marker. AR 18. Accordingly, the ALJ found Mr. Myres was not disabled. AR 10.

DISCUSSION

As noted above, the Court declines to adopt the portions of the F&R relating to Mr. Myres's contention that the ALJ erred by failing to give clear and convincing reasons for rejecting Mr. Myres's testimony and failing to meet the burden of proving that Mr. ...


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