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Orcutt v. Berryhill

United States District Court, D. Nevada

March 26, 2019

CATHERINE A. ORCUTT, Plaintiff(s),
v.
NANCY A BERRYHILL, Defendant(s).

          ORDER

         Presently before the court is Magistrate Judge Leen's report and recommendation (“R&R”). (ECF No. 25). Defendant Carolyn Colvin (“defendant”) filed an objection (ECF No. 26), to which plaintiff Catherine Orcutt (“plaintiff”) replied (ECF No. 27).

         Also before the court is plaintiff's motion to remand. (ECF No. 19). Defendant filed a response (ECF No. 22), to which plaintiff replied (ECF No. 23).

         Also before the court is defendant's motion to affirm (ECF No. 24). Plaintiff did not file a response, and the time to do so has passed.

         I. Facts

         The parties do not object to the factual presentation in the R&R. Rather, defendant objects to Magistrate Judge Leen's legal analysis with respect to the pertinent facts. See (ECF No. 26). Therefore, the court adopts the factual representation in the R&R and will detail factual and procedural background in the discussion section of this order as necessary to explain the court's holding.

         II. Legal Standard

         A party 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); LR IB 3-2. Where a party timely objects to a magistrate judge's report and recommendation, the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of a magistrate judge within fourteen (14) days from the date of service of the findings and recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a motion within fourteen (14) days after service of the motion.

         III. Discussion

         Because defendant's objections to Magistrate Judge Leen's R&R are so expansive, covering nearly every point of legal analysis contained therein, the court will conduct a de novo review of the underlying motions to remand (ECF No. 19) and to affirm (ECF No. 24). See 28 U.S.C. § 636(b)(1).

         In her motion to remand, plaintiff argues that the administrative law judge (“ALJ”) made three reversible errors. (ECF No. 19-1). First, plaintiff asserts that the ALJ's residual functional capacity determination is unsupported by substantial evidence. Id. Second, plaintiff asserts that the ALJ's “credibility assessment is unsupported by substantial evidence because the ALJ erred in considering the required factors.” Id. Finally, plaintiff asserts that the ALJ erred in eliciting vocational testimony from a vocational expert that was based upon an “incomplete” hypothetical question. Id. The court will address each of the alleged errors in turn.

         a. The residual functional capacity determination

         In her motion, plaintiff argues that the ALJ erroneously discounted the opinions of her treating physicians in favor of an opinion from a non-examining state agency physician without providing adequate reasons for the weight accorded to each source. (ECF No. 19-1). Plaintiff asserts that this miscalculation resulted in a “residual functional capacity” determination that was unsupported by substantial evidence in the record. Id.

         Specifically, plaintiff takes issue with the ALJ's finding that plaintiff's admitted activities of daily living and part-time work were inconsistent with treating physician Dr. Robinson's opinion that plaintiff was disabled. Id. Plaintiff argues that ...


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