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Stevens v. Colvin

United States District Court, D. Oregon

May 11, 2015

MICHAEL K. STEVENS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Kathryn Tassinari and Drew Johnson, DREW L. JOHNSON, P.C., Eugene, OR, Attorneys for Plaintiff.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, District of Oregon, Portland, OR; Lars J. Nelson, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Seattle, WA. Attorneys for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Michael K. Stevens ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act. United States Magistrate Judge John V. Acosta issued Findings and Recommendation ("F&R") in this case on February 3, 2015. Dkt. 35. Judge Acosta recommended that the Commissioner's decision be reversed and remanded for further administrative proceedings. Both the Commissioner and Plaintiff timely filed objections. Dkts. 40, 44. For the reasons below, the Court adopts the F&R in part. The Court adopts the portions of the F&R regarding the ALJ's credibility determinations. The Court concurs with Judge Acosta's conclusion regarding the sufficiency of Plaintiff's residual functional capacity. The Court declines, however, to adopt Judge Acosta's conclusion regarding the vocational expert's hypothetical. Accordingly, the Court affirms the Commissioner's decision that Plaintiff is not disabled within the meaning of the Social Security Act.

STANDARD OF REVIEW

In a social security case decided in the first instance by a magistrate, review of the magistrate's opinion entails review of the underlying social security decision. Therefore, two decisions in this case are subject to review by this Court-the first by the Commissioner, and the second by Judge Acosta. By statute, the two decisions are entitled to two different standards of review.

A. The F&R

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. § 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 to which no objections are filed."). Nor, however, does the Act "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 Federal Rule of Civil Procedure 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."

B. The Commissioner's Decision

The Court must affirm the Commissioner's decision if it is free of legal error and its findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

In reviewing the Commissioner's decision, the Court "must consider the entire record as a whole." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation marks omitted). The Court may not affirm the Commissioner "simply by isolating a specific quantum of supporting evidence"; nor may the Court affirm the Commissioner on a ground upon which the Commissioner did not rely. Id. (quotation marks omitted); see also Bray, 554 F.3d at 1226. But as long as "the agency's path may reasonably be discerned, " the Court must affirm the agency's decision, even though the agency may have explained it with "less than ideal clarity." Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (quotation marks omitted).

DISCUSSION

Judge Acosta determined that the ALJ did not err in rejecting portions of the medical opinion of Bassel Beitinjaneh, M.D.; did not err in rejecting Plaintiff's credibility; did not err in rejecting portions of lay-witness testimony from Plaintiff's wife, Michele Stevens; and did not err in how the ALJ incorporated Plaintiff's concentration, persistence, and pace deficits into Plaintiff's residual functional capacity ("RFC"). Judge Acosta then determined, however, that the ALJ erred in her hypothetical to a vocational expert ("VE") because the hypothetical did not sufficiently capture Plaintiff's work-related limitations relating to concentration, persistence, and pace. Accordingly, Judge Acosta determined that the case should be reversed and remanded for further administrative proceedings. The Commissioner objects to the portion of the F&R relating to the omission of concentration, persistence, and pace deficits in the VE hypothetical. Plaintiff objects to the portions ...


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