McGary v. O'Malley

1 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 2 Mar 30, 2024 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON JEANNIE M.,1 No. 2:22-cv-00116-RHW 7 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION TO vs. DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT MARTIN O’MALLEY, AND GRANT DEFENDANT’S COMMISSIONER OF SOCIAL MOTION FOR SUMMARY SECURITY,2 JUDGMENT Defendant.

11 ECF Nos. 13, 14, 18 12 Before the Court is the Report and Recommendation issued by Magistrate Judge James. A. Goeke on August 28, 2023, ECF No. 18, recommending Plaintiff’s Motion for Summary Judgment, ECF No. 13, be denied and Defendant’s 1 To protect the privacy of plaintiffs in social security cases, the undersigned identifies them by only their first names and the initial of their last names. See LCivR 5.2(c).

19 2 Pursuant to Federal Rule of Civil Procedure 25(d), Martin O’Malley, Commissioner of Social Security, is substituted as the named Defendant.

1 Motion for Summary Judgment, ECF No. 14, be granted. Plaintiff filed objections to the Report and Recommendation and Defendant responded. ECF Nos. 19, 20.

3 The Court ordered the parties to confer and supplement the record, ECF No. 21, and they timely complied. ECF No. 22. The Court has considered Plaintiff’s remaining objections and after reviewing the Report and Recommendation, the Court finds the Magistrate Judge’s findings are correct. Therefore, the Court adopts the Report and Recommendation in its entirety, albeit with the following explanation.

9 1. Date Last Insured 10 Plaintiff has withdrawn her objection to the Report and Recommendation on the issue of Plaintiff’s date last insured. ECF No. 22 at 2. Accordingly, there is no dispute that the ALJ properly concluded that the relevant period was the brief period of time from March 13, 2018 through June 30, 2018.

14 2. Presumption of Continuing Non-disability 15 The ALJ's finding that the presumption under Chavez v. Bowen, 844 F.2d 16 691, 693 (9th Cir. 1988) applies was, at most, harmless error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (finding that harmless error principles apply when an error is inconsequential to the ultimate nondisability determination). Although the ALJ stated that the Chavez presumption applied and that Plaintiff had not proved changed circumstances indicating greater disability, the ALJ did not functionally apply the presumption. Instead, the ALJ proceeded to evaluate Plaintiff’s claim on the merits. The ALJ's formal finding that Plaintiff did not rebut the presumption was inconsequential because it did not end or control the evaluation of Plaintiff’s claim. See e.g., Cha Yang v. Comm’r of Soc. Sec., 488 F.

5 App’x 203, 204 (9th Cir. 2012) (ALJ's misapplication of Chavez presumption was harmless); McGlothen v. Colvin, No. 2:15-cv-204-GJS, 2015 WL 5706186, *3 (C.D. Cal. 2015) (ALJ's “invocation of res judicata” was harmless error because the “ALJ proceeded with a review of the medical evidence—a review that approximated the traditional five-step approach”).

10 3. Medical Opinion Evidence and Plaintiff’s Symptom Claims 11 The Report and Recommendation properly concludes that substantial evidence supports the ALJ’s finding that Nurse Practitioner Cody Harris’ February 17, 2021 opinion was unpersuasive. The ALJ’s analysis was governed by the new regulations which require consideration of supportability and consistency. The Report and Recommendation notes that the ALJ considered both factors and cited internal inconsistencies and inconsistencies with pertinent record evidence from the narrow relevant period. Plaintiff’s objection to the R&R rests on identical arguments that were raised in her motion for summary judgment. Having reviewed the record, the Court finds the Report and Recommendation properly analyzed the medical opinion evidence.

1 Plaintiff’s objection as to the issue of Plaintiff’s symptom complaints is an ineffective general objection. Plaintiff repeats the arguments made in the motion for summary judgment and rests on the untrue assertion that the R&R contains “no analysis or evaluation of the record evidence.” ECF No. 19 at 9. The Court need not review an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, No. CV-12-01396-PHX-DHC (SPL), 2013 WL 5276367, *2 (D. 7 Ariz. 2013) (“Because de novo review of an entire R & R would defeat the efficiencies intended by Congress, a general objection ‘has the same effect as would a failure to object.’ ”) (citations omitted); Haley v. Stewart, No. CV-02- 1087-PHX-DGC (CRP), 2006 WL 1980649, *2 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).

12 Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff’s objections, ECF No. 19, to the Report and Recommendation are OVERRULED.

15 2. The Report and Recommendation, ECF No. 18, is ADOPTED in its entirety.

17 3. Plaintiff’s Motion For Summary Judgment, ECF No. 13, is DENIED.

18 4. Defendant’s Motion, ECF No. 14, is GRANTED.

19 5. The District Court Executive shall update the docket sheet to reflect the substitution of Martin O’Malley as Defendant.

1 The District Court Executive is directed to enter this Order, ENTER JUDGMENT in favor of Defendant, forward copies to counsel and Magistrate Judge Goeke, and CLOSE THE FILE.

4 DATED March 30, 2024. s/Robert H. Whaley 6 ROBERT H. WHALEY Senior United States District Judge