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Polette v. Colvin

United States District Court, W.D. Washington, Tacoma

May 8, 2014

JAMES R. POLETTE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt.18), and Plaintiff James R. Polette's ("Polette") objections to the R&R, (Dkt. 19).

I. PROCEDURAL & FACTUAL BACKGROUND

On February 25, 2014, Judge Strombom issued an R&R recommending the Court affirm the Administrative Law Judge's (ALJ's) decision that Polette is not disabled and denying benefits. Dkt. 18. On March 14, 2014, Polette filed objections to the R&R. Dkt. 19.[1] On April 4, 2014, Defendants filed a reply, arguing in part that R&R should be affirmed. Dkt. 24.

II. DISCUSSION

A. Standard of Review

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P 72(b)(3).

B. Objections

Polette filed objections to the R&R, essentially arguing that: (1) the ALJ erred in applying an incorrect legal standard by treating the opinion of a Washington State disability examiner as a medical opinion, and (2) that the August 25, 2010 opinion of treating physician Dr. Jeffry Ford, D.O ("Dr. Ford"), which was submitted to the Appeals Counsel after the ALJ rendered his decision, demonstrates that the record lacks substantial evidence to support the finding of non-disability. Id.

1. Examiner's non-medical opinion affirmed by physician as medical opinion

In evaluating the medical opinion evidence in the record in this case, the ALJ found in relevant part that non-medical state examiner James F. Smith's opinion, which was reviewed and affirmed by Dr. Robert G. Hoskin, M.D., a non-examining consultative physician, as his medical opinion (See AR 214-21, 355), reflected that:

... in October 2009 and February 2010... [the] claimant could occasionally lift 20 pounds and frequently lift 10 pounds and stand and/or walk for about 6 hours in an 8 hour workday and sit for about 6 hours in an 8 hour workday; but must periodically alternate sitting and standing to relieve pain or discomfort; and could occasionally climb, balance, stoop, kneel, crouch, crawl; and should avoid concentrated exposure to extreme cold or wetness (2F, 6F). The state agency opinion is given significant weight because it is consistent with the record as a whole.

AR 25. In addition, the ALJ found:

In November 2010 [the] claimant's treating doctor, Dr. [Michael Dansie], reported "I... discussed that based on what [he] has told me (his ability to both his long drive himself, (sic) and do activities of daily living) that he would not qualify for disability" (5F/10). In November 2010 Dr. Rodney Muhammad opined "apparently, this patient is fit enough to become physically aggressive and threatening. He had no problem with upper or lower extremity function when he felt his anger and aggression was justified." He further opined "he is also, apparently, capable of functioning at a level that would allow for him to work in some capacity by history alone" (5F/12). While somewhat vague, the opinions of [the] claimant's treating and examining doctors that he is not disabled and can likely work are given some weight because these opinions are generally consistent with the record as a whole. The above residual functional capacity for a limited range of light work, allowing for a ...

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