Parker v. O'Malley

• Court: District Court, E.D. Washington
• Decided: December 5, 2024
• Docket: 4:23-cv-05125
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Dec 05, 2024 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 NORA P.,1 No. 4:23-cv-05125-RHW 6 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION TO 7 vs. DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 8 MARTIN O’MALLEY, AND GRANT DEFENDANT’S COMMISSIONER OF SOCIAL MOTION FOR SUMMARY 9 SECURITY, JUDGMENT

10 Defendant. ECF Nos. 10, 12, 15 Before the Court is the Report and Recommendation issued by Magistrate 11 Judge James. A. Goeke, ECF No. 15, recommending Plaintiff’s Motion for 12 Summary Judgment, ECF No. 10, be denied and Defendant’s Motion for Summary 13 Judgment, ECF No. 12, be granted. Plaintiff filed objections to the Report and 14 Recommendation and Defendant responded. ECF Nos. 16, 17. 15 Under the Federal Magistrates Act (Act), the Court may “accept, reject, or 16 modify, in whole or in part, the findings or recommendations made by the 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 1 magistrate.” 28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge’s 2 findings and recommendations, “the court shall make a de novo determination of

3 those portions of the report or specified proposed findings or recommendations to 4 which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). Nevertheless, objections 5 to a magistrate judge’s report and recommendation are not an appropriate vehicle

6 to rehash or re-litigate the points considered and resolved by the magistrate judge. 7 See, e.g., El Papel LLC v. Inslee, 2021 WL 71678, at *2 (W.D. Wash. Jan. 8, 2021) 8 (“Because the Court finds that nearly all objections are merely a rehash of 9 arguments already raised and decided upon by the Magistrate Judge, the Court will

10 not address each objection here.”); Aslanyan v. Herzog, 2014 WL 7272437, at *1 11 (W.D. Wash. Dec. 17, 2014) (rejecting a challenge to a magistrate judge's report 12 and recommendations when “all of [plaintiff's] objections simply rehash arguments

13 contained in his amended opening memorandum or in his reply memorandum”). 14 The Court has conducted a de novo review of the entire record and the 15 Report and Recommendation. The Court finds the Magistrate Judge’s findings are 16 correct. Therefore, the Court adopts the Report and Recommendation in its

17 entirety with the following additional explanation. 18 Plaintiff contends the Magistrate Judge did not review Plaintiff’s Reply 19 because it was not cited or mentioned in the Report and Recommendation. ECF

20 No. 16 at 1-2. However, this is not evidence the Court neglected the Reply; rather 1 it reflects that the Reply did not change the recommendation. 2 Plaintiff objects to the Report and Recommendation’s finding that Plaintiff

3 waived her challenge to the reasons the ALJ discredited Dr. Fix-Lanes’ opinions 4 by failing to specifically challenge them. See ECF No. 15 at 13. Plaintiff argued 5 in the Opening Brief that Dr. Fix-Lanes’ opinions “hinged [] on the lack of

6 objective evidence or more significant treatment recommendations,” which 7 Plaintiff addressed earlier in the brief. ECF No. 16 at 2. However, the ALJ’s 8 findings did not “hinge” on just two reasons. In addition to the lack of objective 9 evidence and treatment, the ALJ explained that Dr. Fix-Lane’s limitations

10 contained “no support in this provider's contemporaneous treatment notes,” they 11 “were also offered without any detailed explanation,” and they were “inconsistent 12 with the other objective evidence in the record, which routinely showed she had a

13 mostly normal review of her musculoskeletal systems (Exhibit 18F page 4).” Tr. 14 42-43. As Plaintiff did not specifically challenge the additional reasons identified 15 by the ALJ for giving less weight to the opinions of Dr. Fix-Lanes, she at least 16 waived any argument regarding the other non-challenged reasons. See Zango, Inc.

17 v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n.8 (9th Cir. 2009) (“arguments not 18 raised by a party in an opening brief are waived”); see also Pendley v. Colvin, 2016 19 U.S. Dist. LEXIS 53470 at *22–23, 2016 WL 1618156 (Dist. Or. Mar. 2, 2016)

20 (noting that the plaintiff “challenge[d] some, but not all, of the reasons provided by 1 the ALJ” and “any argument against those-non challenged reasons [was] deemed 2 waived”). Even assuming, arguendo, that the finding of waiver is incorrect, the

3 Report and Recommendation properly analyzes each of the ALJ’s reasons for 4 according less weight to Dr. Fix-Lanes’ opinions. 5 Plaintiff contends Dr. Fix-Lanes’ opinions should have been accorded

6 greater weight because of her treating relationship and understanding of Plaintiff’s 7 condition as symptoms of Ehlers-Danlos Syndrome (EDS) do not typically present 8 on imaging studies or lab tests. However, the applicable regulations eliminated the 9 hierarchy giving treating sources more weight than non-treating sources. See

10 Revisions to Rules, 2017 WL 168819 (Jan. 18, 2017). Instead, the ALJ is required 11 to evaluate the persuasiveness of all the medical opinions, which the ALJ 12 reasonably performed.

13 Plaintiff objects to the affirmance of ALJ’s analysis of Plaintiff’s symptom 14 claims. ECF No. 16 at 4-5. Although the ALJ erred in consideration Plaintiff’s 15 daily activities (including her work activity), the error was harmless because the 16 ALJ thoroughly elaborated a number of other substantial and valid reasons.

17 Plaintiff claims the ALJ’s error was not harmless because the impact of symptoms 18 on Plaintiff’s daily activities “is a material issue.” ECF No. 16 at 5. Certainly it is 19 true that Plaintiff’s subjective claims play an enhanced role in evaluating a claim

20 involving a complex condition as EDS. However, the other reasons relied upon by 1 the ALJ included inconsistencies with the objective evidence, inconsistencies with 2 the treatment notes, inconsistent statements, conservative treatment, improvement

3 with treatment, and non-compliance with treatment recommendations. Plaintiff 4 takes issue with the ALJ’s reliance on the lack of objective medical evidence and 5 the course of treatment, as the severity of Ehlers-Danlos Syndrome (EDS)

6 symptoms are not easily verified with objective testing. However, the ALJ in this 7 case did not only rely on the objective testing. As joint pain is one of the cardinal 8 manifestations of patients with EDS, Tr. 73-80, Plaintiff’s presentation on 9 examination and course of treatment was relevant to evaluating the claim of

10 debilitating symptoms. Plaintiff has not demonstrated that this evidence is not 11 relevant in evaluating the severity of EDS-related symptoms. The Court finds the 12 ALJ did not impermissibly minimize the effects of EDS or evidence a

13 misunderstanding of the condition in evaluating Plaintiff’s symptom complaints 14 against the record as a whole. 15 Accordingly, IT IS ORDERED: 16 1. Plaintiff’s objections to the Report and Recommendation, ECF No. 16,

17 are OVERRULED. 18 2. The Report and Recommendation, ECF No. 15, is ADOPTED in its 19 entirety with the additional explanation herein.

20 2. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED. 1 3. Defendant’s Motion for Summary Judgment, ECF No. 12, is 2 GRANTED.

3 The District Court Executive is directed to enter this order, ENTER 4 JUDGMENT in favor of Defendant, forward copies to counsel and Magistrate 5 Judge Goeke, and CLOSE THE FILE.

6 DATED December 5, 2024. 7 s/Robert H. Whaley ROBERT H. WHALEY 8 Senior United States District Judge 9 10 11 12

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