Christopherson v. Colvin, No. 3:2013cv00114 - Document 37 (D. Nev. 2015)

Court Description: ORDERED that the # 32 R&R is accepted and adopted. Plaintiff's # 17 Motion to Remand is denied and Defendant's # 29 Cross-Motion to Affirm is granted. Clerk is directed to enter final judgment in favor of Defendant Carolyn W. Colvin, Commissioner of Social Security. Signed by Judge Miranda M. Du on 3/4/2014. (Copies have been distributed pursuant to the NEF - DRM)
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Christopherson v. Colvin Doc. 37 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 LEWIS D. CHRISTOPHERSON, 9 10 11 12 Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Case No. 3:13-cv-00114-MMD-VPC ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Defendant. 13 14 Before the Court is Magistrate Judge Valerie P. Cooke’s Report and 15 Recommendation (“R&R”) (dkt. no. 32) regarding Plaintiff Lewis D. Christopherson’s 16 Motion for Remand and/or Reversal (“Motion”) (dkt. no. 17) and Defendant Carolyn W. 17 Colvin’s Opposition and Cross-Motion to Affirm (dkt. nos. 28, 29). Plaintiff replied to the 18 Opposition and Cross-Motion (dkt. no. 30). Magistrate Judge Cooke issued the R&R on 19 March 24, 2014, concluding that substantial evidence supports the Administrative Law 20 Judge’s (“ALJ”) findings. (Dkt. no. 32 at 18-19.) Plaintiff timely filed an objection (dkt. no. 21 33) to which Defendant responded (dkt. no. 34). 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 24 timely objects to a magistrate judge’s report and recommendation, then the court is 25 required to “make a de novo determination of those portions of the [report and 26 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Plaintiff’s 27 objection, the Court has engaged in a de novo review to determine whether to adopt 28 Magistrate Judge Cooke’s R&R. 1 The R&R finds that the ALJ’s decision to uphold the denial of Plaintiff’s disability 2 claims was supported by substantial evidence in the record. The R&R provides a 3 thorough and detailed explanation of the ALJ’s decision that can be used to address 4 each of Plaintiff’s objections, which reiterate the arguments he raised in the Motion. 5 First, Plaintiff argues that the ALJ failed to properly assess his residual functional 6 capacity (“RFC”) because the ALJ gave improper weight to the opinions of a consultative 7 examiner and a state agency reviewing physician. (Dkt. no. 33 at 3.) Plaintiff contends 8 that the consultative examiner failed to review his entire medical record in carrying out 9 his independent examination. (Id. at 4.) Plaintiff further argues that both the consultative 10 examiner and the reviewing physician should have considered medical findings that 11 were made after their examinations. (Id. at 4-5). Plaintiff, however, does not cite to any 12 authority that requires examining physicians to review subsequent medical evidence. 13 Rather, it is the SSA that must determine an applicant’s RFC by assessing the whole 14 record, including all evidence and medical reports. 20 C.F.R. § 404.1545(a); see 15 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). The R&R discusses that in 16 determining the RFC, the ALJ considered the entire record in addition to the subsequent 17 medical findings of Plaintiff’s treating physicians. (Dkt. no. 32 at 8, 10-12.) The R&R 18 concludes that the ALJ did not err in considering findings from the consultative examiner 19 and the state agency physician as part of the RFC determination. (Id. at 13.) The Court 20 agrees with the Magistrate Judge’s conclusion that substantial evidence supports the 21 RFC determination. 22 Second, Plaintiff contends that the ALJ improperly evaluated the credibility of his 23 subjective complaints. (Dkt. no. 33 at 6-8.) The R&R notes that the ALJ found 24 inconsistencies between Plaintiff’s subjective complaints regarding the severity of his 25 symptoms, Plaintiff’s testimony about his daily activities, and the medical evidence. (Dkt. 26 no. 32 at 16-18.) The Court agrees with the Magistrate Judge’s conclusion that these 27 inconsistencies adequately support the ALJ’s credibility determination. (See id. at 18.) 28 /// 2 1 The R&R recommends that the Court deny Plaintiff’s Motion for Remand and/or 2 Reversal (dkt. no. 17) and grant Defendant’s Cross-Motion to Affirm (dkt. no. 29). Upon 3 review of the R&R and the record in this case, the Court determines that it is appropriate 4 to adopt the R&R in full. 5 It is hereby ordered that the R&R (dkt. no. 32) is accepted and adopted. Plaintiff’s 6 Motion to Remand and/or Reverse (dkt. no. 17) is denied and Defendant’s Cross-Motion 7 to Affirm (dkt. no. 29) is granted. The Clerk is directed to enter final judgment in favor of 8 Defendant Carolyn W. Colvin, Commissioner of Social Security, pursuant to this Order. 9 10 DATED THIS 4th day of March 2015. 11 12 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3