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Colmery-Pinkerton v. Colvin

United States District Court, C.D. California, Eastern Division

May 12, 2015

LISA ANN COLMERY-PINKERTON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

JOHN F. WALTER, District Judge.

I.

INTRODUCTION

On April 16, 2015, the United States Magistrate Judge issued a Report and Recommendation ("R&R") in this action, recommending that plaintiff's Motion for Summary Judgment be denied, that defendant's Cross-Motion for Summary Judgment be granted, and that the decision of the Commissioner be affirmed and this action dismissed. On May 6, 2015, plaintiff filed her "Objection to Notice of Magistrate Judge's Report and Recommendation..." ("Objections" or "Obj.").

II.

DISCUSSION

Plaintiff raises several objections to the Magistrate Judge's findings in the R&R, "making the court... aware of so many discrepencies [sic] and incorrect statements of facts as well as detrimentally wrong facts of dates of ocurrance/s [sic]." (Obj. at 3). She argues that it should be against "correct protocol to rule against the plaintiff in a case such as this one" where "there clearly are misnoted and incorrect dates of events and false statements of hearing on December of 2013, recorded of ALJ [] Young." (Id.).

First, plaintiff clarifies, and the Court accepts, that she was involuntarily hospitalized from September 24, 2012, through September 26, 2012 (Obj. at 1) - not in 2011 (as indicated in footnote 17 on page 19 of the R&R), [1] and not from September 24, 2012, through September 27, 2012 (as indicated on page 9 of the R&R). These changes have no bearing on the Magistrate Judge's findings and recommendations.

Second, plaintiff states that she "ceased her care with Dr. Atiya due to his lack of sufficient help and practice ethics." (Obj. at 1). A review of the record shows that the ALJ gave little weight to the opinion of treating physician Dr. Atiya because it was "unsupported by medical treatment records indicating abnormalities and symptoms consistent with the opined limitations." (Administrative Record ("AR") at 34). The Magistrate Judge found that the ALJ's reasons for discounting Dr. Atiya's opinions were specific and legitimate, and supported by substantial evidence. (R&R at 14). The fact that plaintiff no longer sees Dr. Atiya as a treating physician has no bearing on either the ALJ's findings, or the Magistrate Judge's findings and recommendations.

Third, plaintiff informs the Court that treating physician Dr. Iglal El-Henawi is female. This change has no bearing on the Magistrate Judge's findings and recommendations.

Fourth, plaintiff states that she "wants the court to recognize that she HAS MULTIPLE INJURIES that... all need/require/demand medical attention on a regular basis." (Obj. at 2). A review of the ALJ's decision shows that he considered "the entire record, " and found that plaintiff has multiple severe impairments including lumbar spine degenerative joint disease and multi-level disc protrusions; cervical spine degenerative disc disease and disc extrusion at the C6-C7 level; right knee degenerative joint disease; right knee torn meniscus; and a depression disorder. (AR at 25). He also found plaintiff's hypertension, asthma, and obesity to be nonsevere. (AR at 25-26). Based on his consideration of the entire record and plaintiff's severe and nonsevere impairments, the ALJ concluded that plaintiff was able to perform a reduced range of sedentary work. (AR at 28). The Magistrate Judge found no error in the ALJ's decision and affirmed the decision of the Commissioner, thereby implicitly "recognizing" plaintiff's multiple severe and nonsevere impairments as found by the ALJ. (R&R at 20).

Fifth, plaintiff notes that she continues to "appeal and update the court with new braces/splints" for her arm and for her right knee, and continuously wears a brace on her right arm, and a hinged brace on her right knee. (Obj. at 2). She states that she wants the Court to request up-to-date records, history, and additional MRIs "if need be." (Obj. at 3). Plaintiff's prior request to submit new evidence was addressed by the Magistrate Judge in the R&R and denied because plaintiff failed to demonstrate good cause for failing to develop the evidence previously. (R&R at 9-11). Similarly, plaintiff presents no convincing reasons in her Objections for the Court to consider or request any new evidence.

Sixth, plaintiff notes that her impairments "have been ongoing since onset of JANUARY 1999, " as the result of a motor vehicle accident that was settled during arbitration. (Id.). She generally complains that the other party to the accident has misstated the settlement amount. (Id.). These facts have no bearing on the Magistrate Judge's findings or recommendation.

Seventh, plaintiff complains that the ALJ "may have only referenced less acute items of her 2011 MRI" so as to justify his denial of her benefits. (Obj. at 2-3). A review of the record shows that the 2011 MRI of plaintiff's right knee was ordered by Dr. Grames, and revealed a medial tear in the central portion of the medial meniscus and moderate joint effusion of the right knee. (AR at 364-65). Based on the MRI, and also on x-rays of the bilateral knees taken on June 8, 2011, Dr. Grames diagnosed plaintiff with right knee degenerative joint disease and a medial meniscus tear, and recommended arthroscopic surgery. (Id.). Although in his decision the ALJ did not state the specific weight given to Dr. Grames' opinion (see generally AR at 34-35), the ALJ apparently considered that opinion and the 2011 MRI when he found that plaintiff has the severe impairments of right knee degenerative joint disease and a torn meniscus, and limited her to occasional pushing and pulling with the right lower extremity, occasional stooping, ...


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