United States District Court, D. New Mexico
TIMOTHY B. ABREU, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDING AND RECOMMENDED DISPOSITION
JUDITH C. HERRERA, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on United States
Magistrate Judge Carmen E. Garza's Proposed Findings
and Recommended Disposition (“PFRD”), (Doc.
21), filed August 3, 2017. The PFRD recommended that
Plaintiff's Brief in Support of Motion to Remand and
Reverse (the “Motion”), (Doc. 13), be
granted and that this case be remanded to the Commissioner
for further proceedings.
parties were notified that written objections to the PFRD
were due within 14 days, and that failure to object would
preclude appellate review. (Doc. 21 at 16). The Commissioner
timely filed Defendant's Objections to the Report and
Recommendation of the United States Magistrate Judge
(the “Objections”), (Doc. 22), on August 16,
2017. Plaintiff did not file objections to the PFRD and did
not file a response to the Commissioner's Objections, and
the deadlines for doing so have passed. After a de
novo review of the record and the PFRD, the Court adopts
the Magistrate Judge's PFRD in its entirety.
Abreu filed applications for disability insurance benefits
and supplemental security income on August 31, 2012, alleging
disability beginning August 27, 2011. (Administrative Record
“AR” 11). Mr. Abreu's applications were
denied initially, and again upon reconsideration.
Id. A request for a hearing was filed, and a hearing
was held before an Administrative Law Judge
(“ALJ”), who issued an unfavorable decision.
Id. at 23. Mr. Abreu then filed an application for
review by the Appeals Council, which was denied. Id.
Mr. Abreu appealed the ALJ's decision to this Court. Mr.
Abreu argues that the ALJ erred by failing to properly follow
SSRs 96-8p and 96-7p in determining Mr. Abreu's RFC, and
by failing to properly assess Mr. Abreu's credibility
under SSR 96-7p. (Doc. 13 at 2-8). Specifically, Mr. Abreu
contends that the ALJ failed to conduct a
function-by-function assessment and failed to evaluate the
intensity, persistence, and limiting effects of Mr.
Abreu's pain, reduced range of motion of the cervical
spine, and headaches on his ability to work. Id. at
4-6. Mr. Abreu further argues that the ALJ failed to provide
reasons for the weight given to the opinions of Mr.
Abreu's treating physician, Dr. Crawford, in violation of
SSR 96-2p. Id. at 7. Finally, Mr. Abreu contends
that the ALJ erred in his credibility assessment because he
failed to consider Mr. Abreu's efforts to obtain pain
relief and his strong work history. Id. at 7-8.
Court referred this case to United States Magistrate Judge
Carmen E. Garza to perform legal analysis and recommend an
ultimate disposition. (Doc. 19). The Magistrate Judge found
that the ALJ erred by failing to properly address Mr.
Abreu's limitations in his range of motion and ability to
reach, and by failing to properly weigh the medical opinions
of Dr. Crawford, Dr. Whaley, and Dr. Davis. (Doc. 21).
Law Relating to Objections
magistrate judge files her recommended disposition, a party
may serve and file specific written objections to the
proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2).
An objection must be both timely and “sufficiently
specific to focus the district court's attention on the
factual and legal issues that are truly in dispute.”
United States v. One Parcel of Real Prop., 73 F.3d
1057, 1060 (10th Cir. 1996). Additionally, “[i]ssues
raised for the first time in objections to the magistrate
judge's recommendation are deemed waived.”
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996) (internal citations omitted).
resolving objections to a magistrate judge's
recommendations, the district judge must make a de
novo determination regarding any part of the
recommendation to which a party has properly objected. 28
U.S.C. § 636(b)(1)(C). In reviewing the recommendation,
“[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
The Commissioner's Objections to the PFRD
PFRD, the Magistrate Judge found that the ALJ failed to
address evidence in the record that Mr. Abreu is limited in
his range of motion and ability to reach, which is contrary
to the requirements of SSR 96-8p. (Doc. 21 at 11-13). The
Magistrate Judge also found that the ALJ erred by failing to
properly consider the opinions of Dr. Crawford, Dr. Whaley,
and Dr. Davis. Id. at 14-16. Based on these errors,
the Magistrate Judge recommended granting Mr. Abreu's
Motion and remanding this case to the Commissioner for
further proceedings. Id. at 16.
Evidence of Mr. Abreu's ...