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Abreu v. Berryhill

United States District Court, D. New Mexico

September 26, 2017

TIMOTHY B. ABREU, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDING AND RECOMMENDED DISPOSITION

          HON. JUDITH C. HERRERA, UNITED STATES DISTRICT JUDGE

         THIS 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.

         The 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.

         I. Background

         Mr. 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. at 1-3.

         Subsequently, 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.

         The 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).

         II. Objections

         A. Law Relating to Objections

         Once a 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).

         In 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.” Fed.R.Civ.P. 72(b)(3).

         B. The Commissioner's Objections to the PFRD

         In the 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.

         1. Evidence of Mr. Abreu's ...


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