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McPurdy v. Colvin

United States District Court, Ninth Circuit

December 31, 2013

VICTORIA L McPURDY, Plaintiff,
v.
CAROLYN COLVIN, Defendant.

ORDER ON REPORT AND RECOMMENDATION

MARSHA J. PECHMAN, Chief District Judge.

This matter comes before the Court on Plaintiff's objections (Dkt. No. 21) to the Report and Recommendation (R&R) of Chief Magistrate Judge Mary Theiler. (Dkt. No. 20.) Having reviewed the R&R, Plaintiff's objections, Defendant's response, and all related documents, the Court adopts the R&R.

Background

Plaintiff was born in 1966. (Dkt. No. 20 at 2.) She applied for Social Security Insurance payments in August 2010. Her application was denied. (Id.) Plaintiff requested a hearing and an administrative law judge ("ALJ") concluded Plaintiff is not disabled. (Id.) Plaintiff appealed. The Appeals Council denied Plaintiff's request for a review of the ALJ's decision. (Id.) That decision is the subject of this case.

Plaintiff sought review of the ALJ's decision. (Dkt. No. 1.) After considering briefing by Plaintiff and Carolyn Colvin, acting Commissioner of Social Security, Chief Magistrate Judge Mary Alice Theiler recommended this Court affirm the ALJ's decision. Plaintiff now objects to the R&R. (Dkt. No. 21.)

Discussion

A. Legal Standard

Under 28 U.S.C. § 636(b)(1), a district court judge must make a de novo determination of any part of the magistrate judge's report and recommendation to which an objection is made. The district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id . The district court is also empowered to "receive further evidence or recommit the matter to the magistrate judge with instructions." Id .; Fed.R.Civ.P. 72(b)(3).

Plaintiff objects to the R&R on several grounds. First, she claims the record before the ALJ supported her diagnosis as living with fibromyalgia and carpal tunnel syndrome and therefore severely impaired. Second, Plaintiff objects to the R&R because it affirms the ALJ's finding that she is capable of a full range of sedentary work. Third, she objects to the finding that her testimony is not credible. Finally, she objects to the R&R's finding that the failure of the ALJ to address lay testimony was harmless. Each objection is examined in turn.

B. Severely impaired

Plaintiff argues the R&R erred in upholding the ALJ's conclusion that the claimed fibromyalgia diagnosis lacks a medical certainty. She points to a medical report by Dr. Sharma as evidence of a past history of fibromyalgia and of her disability. (Dkt. No. 12-9 at 75-6, AR 50-551.) Plaintiff misrepresents the record. Dr. Sharma did not diagnose Plaintiff with Fibromyalgia. Instead, the very purpose of the visit was to evaluate her autoimmune process. (Id.) The R&R did not err on this point.

Moreover, as the R&R correctly describes, a medically determinable impairment is not established on the basis of a medical diagnosis alone. 20 C.F.R. §416.908. To qualify as medically impaired, the claimant must also show his or her ability to do basic work activities is significantly limited. 20C.F.R. §416.921. The Commissioner is correct that Plaintiff fails to establish the second part of the test. (Dkt. No. 24 at 3.) Consequently, her claim fails.

Similar to her argument about fibromyalgia, Plaintiff claims the R&R failed to adequately consider the record as to her carpal tunnel syndrome. (Dkt. No. 21 at 5). In particular, the ALJ found a "lack of objective evidence confirming carpal tunnel syndrome." (Dkt. No. 12-2 at 30 AR 29.) Plaintiff claims from the tests performed on her by Dr. Thorson, Mr. Goa's observations of her "weak grip, " past diagnosis, observations as to her swelling, along with information from websites about carpel tunnel syndrim, the ALJ should have found the impairment severe. (Id.) In making this argument, Plaintiff posits theories not originally argued and which contradict the record below. Specifically, none of her current diagnosis involve carpal tunnel. Moreover, even if she were diagnosed with carpal tunnel, the ALJ ...


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