McKenzie v. Astrue

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 18 . It is ORDERED that Magistrate Judge Rateau's Report and Recommendation (Doc. 18 ) is ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court. It is further ORDERED that Pl aintiff's claim for benefits is REMANDED to the Commissioner of the Social Security Administration for further proceedings in accordance with the Report and Recommendation and that judgment be entered accordingly. Signed by Senior Judge Frank R Zapata on 8/29/13. (KAH)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Michael Alan McKenzie,
Plaintiff,

10
11

v.

12

Carolyn W. Colvin,1 Acting
Commissioner of Social Security,

13
Defendant.
14

)
)
)
)
)
)
)
)
)
)
)

No. CV 11-784-TUC-FRZ (JR)
ORDER

15

Plaintiff Michael Alan McKenzie filed this action pursuant to 42 U.S.C. § 405(g) of the

16

Social Security Act for judicial review of the final decision of the Commissioner of the Social

17

Security Administration, denying his application for Social Security disability insurance

18

benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Plaintiff’s appeal

19

raises four issues challenging the denial of benefits.

20

This matter was referred to the United States Magistrate Judge for all pretrial

21

proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. §

22

636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court

23

for the District of Arizona.

24
25

On July 25, 2013, Magistrate Judge Jacqueline M. Rateau issued her Report and
Recommendation, recommending that the District Court, after its independent review of the

26
27
28

1. Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin
should be substituted for Michael J. Astrue as the defendant in this suit.

1

record herein, remand this case to the Administrative Law Judge for further proceedings. The

2

Report and Recommendation provides a thorough factual background and medical history and

3

an in-depth legal analysis of the claims under the applicable legal standards, carefully

4

considering the evidence presented at the administrative level and the findings of the ALJ.

5

The Magistrate Judge specifically recommends that, “[o]n remand, the ALJ must

6

reevaluate Dr. Rau’s non-exertional limitations and, in light of that reevaluation, determine

7

whether the testimony of a [vocational expert] is required” and “if the ALJ rejects the lay

8

witness statements of Plaintiff’s family members, he must provide proper and germane reasons

9

for doing so.”

10

The Report and Recommendation advised the parties that they may file written

11

objections within fourteen (14) days from the date of service of a copy of the Report and

12

Recommendation. See 28 U.S.C. § 636(b)(1) and Rules 72(b) of Federal Rules of Civil

13

Procedure. No objections were filed.

14

The Court finds, after consideration of all matters presented and an independent review

15

of the record herein, that the findings of the Magistrate Judge as set forth in the Report and

16

Recommendation, shall be accepted and adopted as the findings of fact and conclusions of law

17

of this Court. Accordingly,

18

IT IS HEREBY ORDERED that Magistrate Judge Rateau’s Report and

19

Recommendation (Doc. 18) is ACCEPTED and ADOPTED as the findings of fact and

20

conclusions of law by this Court;

21

IT IS FURTHER ORDERED that Plaintiff’s claim for benefits is REMANDED to the

22

Commissioner of the Social Security Administration for further proceedings in accordance with

23

the Report and Recommendation;

24

IT IS FURTHER ORDERED that judgment be entered accordingly.

25
26

DATED this 29th day of August, 2013.

27
28
-2-