Grant v. Commissioner of Social Security

• Court: District Court, D. Nevada
• Decided: June 29, 2022
• Docket: 2:21-cv-00422
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

5 TARA GRANT, Case No. 2:21-cv-00422-CDS-DJA

6 Plaintiff, Order Adopting the Report and 7 v. Recommendation of Magistrate Judge

8 KILOLO KIJAKAZI, Commissioner of Social (ECF No. 39) Security, 9

10 Defendant.

11 12 This case involves pro se plaintiff Tara Grant’s request to review denial of her application 13 for disability insurance benefits and supplemental security income by the Acting Social Security 14 Commissioner. See generally Complaint, ECF No. 7. There are several pending motions before the 15 Court. They include Plaintiff’s filing titled “Answer to Defendant Complaint”1 wherein Grant 16 requested the Court transfer her case to the Nevada Supreme Court, filed on August 18, 2021. 17 ECF No. 29 at 14. Plaintiff also filed a “Motion to Reverse and/or Remand to the Commissioner 18 of Social Security”. ECF No. 30. Plaintiff also filed a motion to extend time to answer or respond 19 to her motion to reverse or remand. ECF No. 33. On October 18, 2021, Defendant filed a 20 countermotion asking this Court to affirm the findings and decision of the Administrative Law 21 Judge (ALJ), asserting that the decision is supported by substantial evidence and free of 22 reversible errors. ECF No. 36. The aforementioned motions were referred to Magistrate Judge 23 Daniel J. Albregts pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4. 24

1 Plaintiff titled her filing “Answer to Defendant Complaint” on the filing and “Motion by Plaintiff to File an Answer to Defendant Brief and Response to the Commissioner of Social Security” on Case Management/Electronic Case Files. ECF No. 29. Regardless of the title used, ECF No. 29 is essentially a Reply to Defendant’s Answer to the Complaint and I construe the motion as such. 1 On January 27, 2022, Magistrate Judge Albregts (ECF No. 39) issued a Report and 2 Recommendation (R&R) that this Court deny Plaintiff’s motions seeking remand and related 3 relief (ECF Nos. 29, 30, 33), and further, that this Court grant Defendant’s cross-motion to 4 affirm (ECF No. 36). Objections to the R&R were due on or before February 10, 2022. See ECF 5 No. 39 at 11 (“[A]ny objection to this Report and Recommendation must be in writing and filed 6 with the Clerk of the Court within fourteen (14) days after service of this Notice.”). 7 Grant filed timely objections to the R&R on February 3, 2022. ECF No. 40. The Acting 8 Social Security Commissioner filed a response to those objections on February 17, 2022. ECF No. 9 41. Grant filed an untimely2 reply to defendant’s response on February 28, 2022. ECF No. 41. For 10 the reasons set forth herein, the Court adopts the R&R in its entirety, overrules plaintiff’s 11 objections, denies her motions for remand and related relief, and grants defendant’s 12 countermotion to affirm the findings of the ALJ. 13 I. Legal Standard 14 Where a party timely objects to a magistrate judge’s report and recommendation, the 15 Court is required “to make a de novo determination of those portions of the [report and 16 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 17 72(b). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or 18 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A magistrate judge's 19 order can be reversed by the district court only if it is “clearly erroneous or contrary to law.” 28 20 U.S.C. § 636(b)(1)(A); see also Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“the phrase 21 ‘contrary to law’ indicates plenary review as to matters of law”). 22 Further, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 23 106 (1976); see also Fed. Rule Civ. Proc. 8(f) (“All pleadings shall be so construed as to do 24 substantial justice”).

2 Local Rule 7-2(b) states that the deadline to file and serve any reply in support of the motion is seven days after service of the response. LR 7-2(b). While the reply was untimely, the Court nonetheless considered it in resolving the motions before the Court. 1 b. Discussion 2 Plaintiff filed timely objections to the R&R (ECF No. 40) and the Court has reviewed 3 those objections. Moreover, the Court liberally construed Plaintiff’s motions and objections to 4 the R&R. Even in liberally construing Grant’s motions and objections to the R&R, Judge 5 Albregts’ R&R was neither clearly erroneous nor contrary to the law. 6 The only statement that can be construed as an objection to Judge Albregts’ Report and 7 Recommendation is Plaintiff’s allegation that “she has been racially profiled and racially 8 discriminated against.” ECF No. 40 at 5. Allegations of racism are serious and are considered 9 accordingly by this Court. But upon my de novo review of the record, no evidence supports 10 Plaintiff’s conclusory allegations that she has been racially profiled and subjected to 11 discrimination. Likewise, there is no evidence that race or discrimination played a role in the 12 Administrative Law Judge’s initial determination, in the ALJ’s review, in Grant’s appeal, or in 13 Magistrate Judge Albregts’ review of Grant’s case. There is also no evidence supporting 14 Plaintiff’s claim that racial discrimination caused the denial of social security benefits. Instead, 15 the record demonstrates that Judge Albregts correctly determined that in Plaintiff’s motions 16 seeking remand did not provide an adequate basis for the Court to address the issues warranting 17 remand. See R&R, ECF No. 39 at 8. I also agree with the finding that Plaintiff failed to introduce 18 new and material evidence. Id. 19 Plaintiff’s objections to the R&R suffer the same fatal mistake as Plaintiff’s initial 20 motion; they fail to demonstrate by way of medical evidence that she is disabled. The objections 21 also fail to demonstrate that Judge Albregt’s R&R was clearly erroneous or contrary to the law. 22 The Court recognizes that Plaintiff disagrees with the Commissioner of Social Security’s 23 determination that Plaintiff is not disabled, but disagreement alone is insufficient to grant the 24 relief sought by Plaintiff. 1 Accordingly, the Court concludes that the record supports the findings set forth in the 2 R&R. The R&R is adopted in its entirety. Plaintiff’s motion for remand (ECF No. 30) and 3 related relief (ECF Nos. 29, 33) are hereby denied. Defendant’s countermotion to affirm (ECF 4 No. 36) is hereby granted. 5 II. Conclusion 6 IT IS THEREFORE ORDERED that United States Magistrate Judge Albregts’ Report 7 and Recommendation (ECF No. 39) shall be ADOPTED and ACCEPTED in its entirety. 8 IT IS FURTHER ORDERED that Plaintiff’s Objections to the Report and 9 Recommendation (ECF No. 40) are OVERRULED. 10 IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Affirm the Agency 11 Decision (ECF No. 36) is GRANTED. 12 IT IS FURTHER ORDERED that Plaintiff’s Motions to File an Answer (ECF No. 29), to 13 Reverse and Remand Based on New Evidence (ECF No. 30), and to Extend Time (ECF No. 33) 14 are DENIED as moot. 15 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 16 accordingly and close the case. 17 IT IS SO ORDERED. 18 19 DATED this June 29, 2022 20 21 _________________________________ Cristina D. Silva 22 United States District Judge 23 24