Young-Fitch v. Commissioner Social Security Administration, No. 1:2012cv00740 - Document 23 (D. Or. 2013)

Court Description: OPINION AND ORDER: Upon review, I agree with Judge Jelderkss recommendation, and I ADOPT the F&R 18 as my own opinion. Signed on 9/11/13 by Judge Michael W. Mosman. (dls)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION KRISTEN YOUNG-FITCH, No. 1:12-cv-00740-JE Plaintiff, OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. MOSMAN, J., On June 18th, 2013, Magistrate Judge Jelderks issued his Findings and Recommendation ( F&R ) [18] in the above-captioned case, recommending that the Commissioner s final decision be affirmed and that this action be dismissed with prejudice. Plaintiff objected [20], and defendant responded [22]. DISCUSSION The magistrate judge makes only recommendations to the court, to which any party may file written objections. I am not bound by the recommendations of the magistrate judge; instead, I retain responsibility for making the final determination. I am required to review de novo those portions of the report or any specified findings or recommendations within it to which an objection is made. 28 U.S.C. § 636(b)(1). However, I am not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those 1 OPINION AND ORDER portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R depends on whether objections have been filed, in either case I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1). Upon review, I agree with Judge Jelderks s recommendation, and I ADOPT the F&R [18] as my own opinion. I write further to address plaintiff s argument that the Administrative Law Judge ( ALJ ) erred in failing to discuss Dr. O Connell s assessment that plaintiff s visual processing speed is extremely low. (Plaintiff s Objections to F&R [20] at 2.) Plaintiff correctly observes that an ALJ s failure to consider an examining physician s opinion when reaching a disability determination is legal error. Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996). However, the results of Dr. O Connell s visual processing tests are not themselves an opinion, but merely part of the data informing Dr. O Connell s conclusions. (Dr. O Connell s Assessment [9-20] at 11-13.) The ALJ considered these conclusions extensively, agreed with many of them, and, as Judge Jelderks noted, gave clear and convincing reasons for rejecting the rest. (ALJ s Decision [9-3] at 20-21; F&R [18] at 22.) To accept plaintiff s argument would be to turn each declaratory statement in a physician s report into an opinion that an ALJ must separately discuss. This is too onerous a burden. IT IS SO ORDERED. DATED this 11th day of September, 2013. /s/ Michael W. Mosman MICHAEL W. MOSMAN United States District Judge 2 OPINION AND ORDER

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