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Colleen Stuart v. Michael J. Astrue

November 8, 2011

COLLEEN STUART,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation (ECF No. 13) issued by United States Magistrate Judge William V. Gallo, recommending that Plaintiff's Motion for Summary Judgment (ECF No.10) be denied and Defendant's Cross-Motion for Summary Judgment (ECF No. 11) be granted.

BACKGROUND

On February 27, 2007, Plaintiff filed an application for disability insurance benefits and supplemental social security income. Plaintiff's application was denied initially and upon reconsideration. On June 25 and August 17, 2009, hearings were held at which Plaintiff appeared before an administrative law judge ("ALJ"). On September 25, 2009, the ALJ issued a written decision finding that Plaintiff was not disabled. The ALJ's decision became the final decision of the Commissioner of Social Security when the Appeals Council denied Plaintiff's request for review.

On November 18, 2010, Plaintiff, represented by counsel, commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). On March 28, 2011, Plaintiff filed a Motion for Summary Judgment. On April 11, 2011, Defendant filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment.

On August 3, 2011, the Magistrate Judge issued the Report and Recommendation. (ECF No. 13). The Report and Recommendation recommends that Plaintiff's Motion for Summary Judgment be denied and Defendant's Cross-Motion for Summary Judgment be granted.

On September 2, 2011, Plaintiff filed Objections to the Report and Recommendation. (ECF No. 14).*fn1 Plaintiff contends the court erred by identifying "one of the non-examining doctors as an examining doctor." Id. at 2. Plaintiff contends that "[t]here is no examining doctor in the record." Id. Plaintiff contends that the clear and convincing standard should have been applied to the "[three] uncontroverted treating doctors' [opinions] in the record." Id. Plaintiff contends that the court's subjective pain analysis is flawed on the grounds that "[n]owhere in the record did the ALJ cite to evidence that [Plaintiff's] daily activities were readily transferable to a competitive work environment." Id. at 3.

On September 3, 2011, Defendant filed a Reply (ECF No. 16). Defendant contends that even if the court misidentified a non-examining doctor as an examining doctor, there is no error in the court's analysis on the grounds that the ALJ did not cite the opinions of any non-examining doctor as the basis for declining to give the treating physicians' opinions controlling weight. Id. at 2. Defendant contends that Plaintiff has failed to challenge the court's findings "that the ALJ properly considered the objective findings and efficacy of treatment when assessing credibility." Id. at 3. Defendant contends that the ALJ properly relied on Plaintiff's daily activities "to establish that she was exaggerating her pain and limitation." Id.

STANDARD OF REVIEW

The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b).

The district judge must "make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

A court "will disturb the denial of benefits only if the decision contains legal error or is not supported by substantial evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quotation omitted). "Substantial evidence is more than a mere scintilla but less than a preponderance." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999) (citation omitted).

DISCUSSION

The Magistrate Judge correctly stated: "Although a treating physician's opinion is generally afforded the greatest weight in the disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability." (ECF No. 13 at 37) (citing McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011)). The Magistrate Judge correctly stated that "'[t]he ALJ may disregard the treating physician's opinion ...


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