United States District Court, D. Nevada
GAIL E. PORTER, Plaintiffs,
SOCIAL SECURITY ADMINISTRATION, et al., Defendants.
before the court are Magistrate Judge Koppe's report and
recommendation that pro se plaintiff Gail
Porter's motion for reversal or remand (ECF No. 33) be
denied and that defendant social security
administration's (“SSA”) cross-motion for
summary judgment (ECF No. 34) be granted. On August 29, 2016,
plaintiff filed a timely objection to the report and
recommendation. (ECF No. 40). On September 9, 2016, defendant
filed a response to the objection (ECF No. 41), and plaintiff
subsequently filed a reply (ECF No. 42). Plaintiff later
filed a second objection on November 28, 2016. (ECF No. 45).
magistrate judge's report and recommendation considered
the administrative law judge's (“ALJ”)
decision based on the administrative record
(“A.R.”). (ECF No. 39). The magistrate judge
articulated plaintiff's argument as stating that the ALJ
erred by: (1) conducting the two-step credibility analysis
improperly; and (2) failing to consider the vocational
adjustment necessary in light of plaintiff's age. (ECF
Nos. 33, 39).
report and recommendation found that the ALJ's
determination that plaintiff's testimony was not credible
was supported by clear and convincing evidence, such as
“prior inconsistent statements, lack of consistent
treatment, and the contrary medical evidence.” (ECF No.
39 at 7) (citing A.R. 18-20). Next, the magistrate judge
found that the ALJ's determination that plaintiff could
perform past work was appropriate, conducting three separate
considerations of “residual functional capacity,
” “the physical and mental demands of the past
job, ” and whether “[plaintiff's] residual
functional capacity would permit a return” to prior
employment. (ECF No. at 39) (citing Ocegueda v.
Colvin, 630 Fed.Appx. 676, 677 (9th Cir. 2015) (citing
Social Security Ruling 82-62, 1982 WL 31386, at *4)).
Additionally, the report and recommendation indicate that
plaintiff challenges step five of the “five-step
sequential evaluation process”; however, step four,
which remains unchallenged, provides the ALJ with sufficient
grounds for reaching the decision at issue. 20 C.F.R. §
416.920; see also (ECF Nos. 33, 39).
magistrate judge also refused to remand the case in light of
plaintiff's additional evidence, finding that plaintiff
had failed to show that the evidence was material or that she
had good cause for failing to offer that evidence earlier.
(ECF No. 39) (citing Mayes v. Massanari, 276 F.3d
453, 461-62 (9th Cir. 2001)). However, the report and
recommendation explicitly stated that plaintiff should not be
barred “from filing a new application for benefits in
the event that she can now prove a disabling physical or
mental condition as of the date of any new
application.” (ECF No. 39 at 10).
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). If a party
fails to object to a magistrate judge's report and
recommendation, however, the court is not required to conduct
“any review at all . . . of any issue that is not the
subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985). Indeed, the Ninth Circuit has
recognized that a district court is not required to review a
magistrate judge's report and recommendation where no
objections have been filed. See United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
were made); see also Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth
Circuit's decision in Reyna-Tapia as adopting
the view that district courts are not required to review
“any issue that is not the subject of an
has filed an objection to the report and recommendation;
therefore, this court finds it appropriate to engage in a
de novo review to determine whether to adopt the
recommendation of the magistrate judge. See (ECF No.
40). As it is relevant to the instant action, plaintiff
objects to the report and recommendation by contesting,
somewhat ambiguously, the ALJ's consideration of her
medical records and determination of her ability to perform
prior work. (Id.).
response to that objection argues that this court is required
to answer only the question of “whether substantial
evidence supports the ALJ's finding that Plaintiff was
not disabled between April 28, 2011 and September 26,
2013.” (ECF No. 41 at 2). Further, this court will not
consider the documents attached to plaintiff's reply;
plaintiff has failed to show that the documents are material
or that she had good cause for not producing those documents
earlier in this case, particularly because some of those
records were created after the administrative proceeding had
concluded. See Mayes, 276 F.3d at 461-62;
compare (A.R. 12), with (ECF No. 42-1).
respect to plaintiff's objection to the ALJ's
consideration of her medical history, she does not argue how
the ALJ did not adequately assess the timely submitted
evidence on the administrative record. (ECF No. 40).
Moreover, her subjective belief regarding her employment
prospects is most relevant, if at all, to the fifth step of
the disability evaluation, which the report and
recommendation has correctly indicated is adequately
supported in this case because of the ALJ's determination
of the previous, fourth step. See Carmickle v.
Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th
Cir. 2008); 20 C.F.R. § 404.1520; see also (ECF
No. 39). Therefore, plaintiff's objection is not
persuasive that the report and recommendation have erred in
their assessment of the relevant motions in this case.
court now turns to assessing de novo the report and
recommendation's treatment of the underlying motions.
First, the magistrate judge properly construed
plaintiff's motion. See Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010). Second, the magistrate judge
correctly articulated and applied the two-stage credibility
analysis to the ALJ's evaluation of plaintiff's case,
and the ALJ did, in fact, provide “specific, clear, and
convincing” reasons for rejecting plaintiff's
testimony based on “prior inconsistent statements, lack
of consistent treatment, and the contrary medical
evidence.” (ECF No. 39 at 6-7) (citing Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009)); see
also (A.R. 18-20). Moreover, the report and
recommendation accurately stated that the ALJ satisfied the
duty to make factual findings regarding plaintiff's
capabilities, the demands of past employment, and how those
findings reconcile. (ECF No. 39 at 9); see also
review, this court will adopt the magistrate judge's
report and recommendation. (ECF No. 39). However, this court
also wishes to echo the magistrate judge's emphasis that
“[n]othing in this order should be construed as
preventing Plaintiff from filing a new application for
benefits in the event that she can now prove a disabling
physical or mental condition as of the date of any new
application.” (ECF No. 39 at 10) (citing Osenbrock
v. Apfel, 240 F.3d 1157, 1164 n.1 (9th Cir. 2001)).
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report
and recommendation of Magistrate Judge Koppe (ECF No. 39) be,
and the same hereby are, ADOPTED in their entirety.
clerk shall enter judgment accordingly and close the case.