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Lucero v. Colvin

United States District Court, D. Nevada

November 2, 2017

CARMEN LUCILLE LUCERO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Valerie P. Cooke (ECF No. 20) regarding Plaintiff Carmen Lucille Lucero's Motion for Remand/Reversal (“Motion to Remand”) (ECF Nos. 15, 15-1) and Defendant Commissioner Carolyn Colvin's Cross-Motion to Affirm (“Cross-Motion”) (ECF No. 19). Also before the Court is Lucero's Motion for Oral Argument on Plaintiff's Objections (“Motion for Hearing”) (ECF No. 22). The Court has reviewed Plaintiff's objections to the R&R (ECF No. 21), Defendant's response (ECF No. 23), and Plaintiff's reply (ECF No. 24-2). The Court has also reviewed the administrative record[1] filed by the Commissioner. (ECF Nos. 9, 14.[2])

         For the following reasons, the R&R is accepted in part and denied in part. As a result, Plaintiff's Motion for Hearing is denied as moot.

         II. BACKGROUND

         Plaintiff Carmen L. Lucero filed for Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security Act on April 19, 2012. (AR 110.)

         Plaintiff's application was denied on December 17, 2012, and then denied again upon reconsideration on June 3, 2013. (AR 36-39, 45-47, 299.) The denial was affirmed by an Administrative Law Judge (“ALJ”) at a hearing on May 15, 2014, and review was denied by the Appeals Council on August 13, 2015. (AR 280-82, 296-306.) Lucero then sought review from this Court.

         The Magistrate Judge found that the ALJ made certain mistakes but that these mistakes were harmless and that remand was not warranted. (ECF No. 20 at 7-9, 14-16.) Accordingly, the Magistrate Judge recommends that Plaintiff's Motion to Remand be denied and that Defendant's Cross-Motion be granted.

         III. LEGAL STANDARD

         This 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)(C). Where a party timely[3] objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” Id.

         Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Social Security Act. In reviewing findings of fact, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez v. Comm'r Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks and citations omitted). The Court must consider the entire record as a whole to determine whether substantial evidence exists, and it must consider evidence that both supports and undermines the ALJ's decision. Id. at 523 (citation omitted). In weighing the evidence and making findings, the Commissioner must also apply the proper legal standards. Id. (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) and Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)).

         IV. DISCUSSION

         The Court agrees with the Magistrate Judge's recommendation that remand is not warranted as to the ALJ's reliance on Lucero's past work as it is generally performed at Step 4, but the Court finds that remand is required as to the ALJ's failure to explain why he rejected the state agency's finding that one of Lucero's prior jobs constituted a composite job, the lack of clarity as to whether the ALJ considered Lucero's mental limitations in the residual functional capacity (“RFC”) assessment, and the ALJ's failure to consider portions of Dr. Wildman's opinion without providing specific and legitimate reasons as to why he did so.

         A. Denial ...


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