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Morley v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

September 30, 2014

KELLY MORLEY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

On November 15, 2012, Ms. Kelly Morley filed a complaint to review the final decision of the Commissioner with regards to her disability claim. Ms. Morley argued that the ALJ failed to consider all of the medical evidence before her and that she improperly evaluated Ms. Morley's treating physicians' opinions. On July 28, 2014, Magistrate Judge Acosta issued his Findings and Recommendation ("F&R") [20] in the above-captioned case, recommending that a judgment be entered reversing the ALJ's final decision and remanding for an immediate award of benefits. Although not an argument raised by Ms. Morley, Judge Acosta determined that the ALJ improperly concluded that Ms. Morley's statements lacked credibility. F&R at 7. Judge Acosta therefore found that the ALJ's decision to discount the opinions of Ms. Morley's treating physicians' opinions that were based on Ms. Morley's statements was not supported by substantial evidence and, as a result, the ALJ incorrectly denied Ms. Morley's disability claim. Id. at 22. I do not believe that it was proper for Judge Acosta to create arguments on behalf of Ms. Morley and therefore I REJECT this portion of the F&R and Judge Acosta's order remanding for an immediate award of benefits.

LEGAL STANDARD

The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).

Judge Acosta properly set out the standard of review for an appeal of the Commissioner's final decision regarding an individual's claim for social security benefits:

The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g) (2006); Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993).

F&R [20] at 4. Judge Acosta also properly stated that:

The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court may not substitute its judgment for that of the Commissioner. Robbins, 466 F.3d at 882; Ellund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Thus, where the evidence is susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld, even where the evidence can support either affirming or reversing the ALJ's conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Id.

In reviewing an appellant's arguments of a final decision, the Ninth Circuit has consistently held that "we cannot manufacture arguments for an appellant and therefore we will not consider any claims not actually argued on the appellant's opening brief." Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (internal quotations omitted); see also Hastings v. Comm'r of Soc. Sec., No. 12-35761, 2014 WL 2937239 (9th Cir. May 27, 2014). This court is limited to reviewing the claims and arguments that appellant actually made, and not those claims that can be inferred or extrapolated from the claims actually made.

DISCUSSION

I. Failure to Consider All of the Medical Evidence

In reviewing the F&R, neither party objected to Judge Acosta's analysis of Ms. Morley's first claim that the ALJ failed to consider all of the medical evidence. Therefore I adopt Judge Acosta's F&R with respect to his analysis and conclusions regarding Ms. Morley's first claim. The ALJ did not fail to consider all of the medical evidence, and therefore this ...


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