United States District Court, D. Nevada
BRIDGET K. COLLERAN, Plaintiff,
NANCY A. BERRYHILL, Defendant.
M. Navarro, Chief Judge United States District Judge
before the Court for consideration is a Motion to Remand,
(ECF No. 16), filed by Plaintiff Briget K. Colleran
(“Plaintiff”) and the Cross-Motion to Affirm,
(ECF No. 19), filed by Defendant Nancy A.
Berryhill (“Defendant” or “the
Commissioner”). These motions were referred to the
Honorable George Foley, United States Magistrate Judge, for a
report of findings and recommendations pursuant to 28 U.S.C.
§§ 636(b)(1)(B) and (C).
September 14, 2016, Judge Foley entered the Report and
Recommendation (“R. & R.”), (ECF No. 24),
recommending Plaintiff's Motion to Remand be granted and
the Commissioner's Cross-Motion to Affirm be denied. The
Commissioner filed an Objection to the Report and
Recommendation, (ECF No. 26), on October 17, 2016. Plaintiff
filed her Response to the Objection, (ECF No. 28), on March
brings this action against Defendant in her capacity as the
Commissioner of the Social Security Administration, pursuant
the Social Security Act, 42 U.S.C. § 405(g). (Compl.,
ECF No. 3). Plaintiff seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration denying her claims for Social Security
Disability (“SSD”) benefits and Supplemental
Security Income (“SSI”) benefits under Titles II
and XVI of the Social Security Act, 42 U.S.C. § 416(i),
23, 1381-1382c. (Id. ¶ 3).
applied for SSD benefits on October 27, 2010, and SSI
benefits on September 19, 2012, which were denied initially
and upon reconsideration. (Id. ¶ 6); (Admin. R.
(“A.R.”) at 42, ECF No. 14-1). Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”), who ultimately issued an unfavorable
decision denying Plaintiff's benefits claim. (Compl.
¶ 7); (A.R. at 39-49). Plaintiff timely requested
Appeals Council review of the ALJ's decision, which was
denied on August 22, 2014. (Compl. ¶ 8).
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. Local R. IB 3-2. Upon the filing of such objections,
the Court must make a de novo determination of those
portions of the Report to which objections are made.
Id. The Court 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)(1); D. Nev. Local
R. IB 3-2(b).
Commissioner presents two objections to the Report and
Recommendation. First, the Commissioner challenges Judge
Foley's finding that “the ALJ erred in rejecting
the opinions of the treating physicians . . . because they
were based on his finding that those opinions were
inconsistent with the medical evidence.” (Obj. 4:16-18,
ECF No. 26). This argument misunderstands Judge Foley's
findings, however. Judge Foley did not find error with regard
to the medical evidence supporting the opinions of
Plaintiff's treating physicians but rather faulted the
ALJ for appearing to require “objective clinical
findings” to support Plaintiff's complaints of
pain. (R. & R. 22:11-12); (see also Id.
21:16-18). The Ninth Circuit has held that an ALJ commits
error “by effectively requiring objective evidence for
a disease that eludes such measurement.” Benecke v.
Barnhart, 379 F.3d 587, 593-94 (9th Cir. 2004). Here,
the ALJ repeatedly emphasized the lack of objective medical
evidence to support Plaintiff's claims of subjective
pain. (A.R. at 46-47, ECF No. 14-1). As Judge Foley stated,
“the ALJ ignored the nature of fibromyalgia.”
the Commissioner challenges Judge Foley's conclusion that
“the ALJ did not adequately address Plaintiff's
fibromyalgia diagnosis and this oversight undermines the
legitimacy of his reasons for rejecting Plaintiff's
credibility.” (Obj. 5:9-11). On this point, the
Commissioner argues that “[t]he ALJ evaluated
Plaintiff's pain complaints allegedly caused by
degenerative disc disease and fibromyalgia and concluded that
Plaintiff's statements concerning the intensity,
persistence, and limiting effects of her subjective pain
complaints were not credible.” (Id. 5:12-15).
Again, the Commissioner misunderstands Judge Foley's
considered several factors in reaching his determination with
respect to Plaintiff's credibility including that
Plaintiff “has undergone only conservative
treatment” and that Plaintiff “made no mention
that her lay-off was the result of her an [sic] inability to
engage in her work duties.” (A.R. at 47). As Judge
Foley noted, “[t]here is no evidence that she failed to
follow a recommended course of treatment.” (R. & R.
22:19-20). Moreover, Judge Foley pointed out that contrary to
the ALJ's report, Plaintiff testified regarding her
belief that missing work due to pain “had a lot to
do” with why she was laid off from her previous
employment. (Id. 22:28-23:1). The Court agrees that
“the ALJ's reason for rejecting Plaintiff's
credibility on this ground was erroneous.”
reviewed the Commissioner's objections de novo,
the Court finds no basis on which to reject Judge Foley's
findings and recommendations. The Court therefore remands
this case for further proceedings consistent with Judge
Foley's Report and Recommendation. Among other things,
the ALJ must determine whether Plaintiff's fibromyalgia
symptoms are so severe as to disable her from performing