Opinion
NO: 2:17-CV-242-RMP
07-18-2018
HERBERT E., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
BEFORE THE COURT is United States Magistrate Judge Mary K. Dimke's Report and Recommendation ("R & R"), ECF No. 22 (June 18, 2018), to deny Plaintiff Herbert E.'s motion for summary judgment, ECF No. 15, and grant Defendant Commissioner of Social Security's (the "Commissioner's") cross-motion for summary judgment, ECF No. 19. On July 2, 2018, Plaintiff filed an "Appeal of Magistrate Decision," ECF No. 24, which the Court interprets as a timely objection to the R & R. The Commissioner did not file a response. The Court has reviewed the R & R, Plaintiff's objection, the remaining record and the relevant law, and is fully informed.
In the interest of protecting Plaintiff's privacy, the Court will use Plaintiff's first name and last initial. --------
In objecting to Judge Dimke's recommended disposition of the cross-motions for summary judgment, Plaintiff argues that the R & R errs in finding that the ALJ properly: (1) evaluated Plaintiff's symptom complaints; (2) weighed the medical evidence; and (3) formulated Plaintiff's residual functional capacity ("RFC"). ECF No. 24. Plaintiff largely reiterates arguments that he made in his summary judgment motion, with the exception of arguing that Judge Dimke should not have relied on Ninth Circuit authority that inconsistent statements concerning drug use can contribute to an adverse credibility finding because of a 2016 Social Security Ruling that "clarifie[s]" the earlier caselaw. ECF No. 22 at 15 (citing Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)).
The Court agrees with Plaintiff that Social Security Ruling No. 16-3p, 2016 SSR LEXIS 4, which is binding on ALJs and entitled to deference from this Court, eliminates the term "credibility" and clarifies that ALJs making determinations "on or after March 28, 2016" must not examine an individual's overall character or truthfulness and must instead focus their analysis on the "individual's statements about the intensity, persistence, and limiting effects of symptoms . . . and . . . whether the statements are consistent with objective medical evidence and the other evidence." See also 20 C.F.R. § 402.35(b)(1) (Social Security Rulings are binding on ALJs, and are entitled to deference from this Court if they are "consistent with the Social Security Act and regulations"); Bray v. Commissioner, 554 F.3d 1219, 1224 (9th Cir. 2009) (discussing function and weight of Social Security Rulings).
Assuming without deciding that Social Security Ruling No. 16-3p is retroactive to the January 2016 decision issued by the ALJ in this matter, the Court finds that the ALJ's evaluation of Plaintiff's subjective complaints nevertheless was based on specific, clear, and convincing reasons, as required, and as discussed in the R & R, ECF No. 22 at 8-17. See Trevizo v. Berryhill, 871 F.3d 664, 678-79 (9th Cir. 2017). The Court further finds that the R & R identifies specific and legitimate reasons supporting the ALJ's treatment of medical opinion evidence, ECF No. 22 at 19-28, and substantial evidence and legal sufficiency supporting the ALJ's RFC formulation, id. at 28-29. Accordingly, IT IS HEREBY ORDERED:
1. The Magistrate Judge's Report and Recommendation, ECF No. 22, is ADOPTED in its entirety.
2. Plaintiff's Motion for Summary Judgment, ECF No. 15, is DENIED.
3. Defendant's Motion for Summary Judgment, ECF No. 19, is GRANTED.
4. The parties shall bear their own costs, and judgment shall be entered for Defendant.
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, provide copies to counsel, and close this case.
DATED July 18, 2018.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge