Cook v. Colvin

Filing 25

ORDER adopting Report and Recommendation as the opinion of the Court re 24 Report and Recommendation. IT IS FURTHER ORDERED remanding this case for further administrative proceedings. The Clerk of the Court shall enter Judgment accordingly. Signed by Senior Judge David C Bury on 10/29/2015. (KEP)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
Rena Cook,

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Plaintiff,
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v.
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Carolyn W. Colvin, Acting Commissioner of)
Social Security Administration,
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Defendant,
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_______________________________________)

CV 14-2408 TUC DCB
ORDER

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This matter was referred to Magistrate Judge Jacqueline M. Rateau, pursuant to Rules

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of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil)

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72.1(a), and she issued a Report and Recommendation (R&R) on August 28, 2015. (Doc. 24:

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R&R). She recommends remanding the case to the Administrative Law Judge (ALJ) for further

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proceedings on Plaintiff’s Application for Social Security Disability Insurance Benefits.

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STANDARD OF REVIEW
The duties of the district court, when reviewing a R&R of a Magistrate Judge, are set

21 forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district
22 court may “accept, reject, or modify, in whole or in part, the findings or recommendations made
23 by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1). When the parties object
24 to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions
25 of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985)
26 (quoting 28 U.S.C. § 636(b)(1)). When no objections are filed, the district court does not need
27 to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United
28 States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc).

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The parties were sent copies of the R&R and instructed they had 14 days to file written

2 objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting
3 to the recommended disposition has fourteen (14) days to file specific, written objections). No
4 objections have been filed.
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REPORT AND RECOMMENDATION
United States Magistrate Judge Rateau considered the following issues: 1) whether the

7 ALJ accorded appropriate weight to examining physician testimony; 2) whether substantial
8 evidence supported the ALJ’s findings regarding Plaintiffs ability to concentrate and remember;
9 3) whether substantial evidence supported the ALJ’s evaluation of lay-witness statements, and
10 4) whether the ALJ properly evaluated the Plaintiff’s credibility. The Magistrate Judge found
11 substantial evidence did support the ALJ’s findings regarding concentration. She found the ALJ
12 properly evaluated the Plaintiff’s credibility, and the ALJ’s well-supported reasons for rejecting
13 the claimant’s testimony applied equally to the lay witness testimony. The Magistrate Judge,
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however, found remand was necessary because the ALJ failed to even mention the examining
physician Dr. Hassman’s opinion that Plaintiff would have to change her sitting position at least
every hour for at least five minutes. Remand is necessary because, as the vocational expert
testified, such a limitation would start to decrease her ability to work on a full-time basis. “With
this testimony in the record, it is apparent that the limitation, if not rejected by the ALJ, would
have some impact on the ALJ’s decision.” (R&R (Doc. 24) at 8.)
Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those
portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the court
shall make a de novo determination of those portions of the report or specified proposed findings
and recommendations to which objection is made.") To the extent that no objection has been
made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th

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Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also,
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Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court,
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501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation).

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While there are no objections and review has, therefore, been waived, the Court

2 nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law.
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3 Robbins v. Carey, 481 F.3d 1143, 1147 (9 Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449,
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4 455 (9 Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v.
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5 Ylst, 951 F.2d 1153, 1156 (9 Cir. 1991) (failure to object standing alone will not ordinarily

6 waive question of law, but is a factor in considering the propriety of finding waiver)). The Court
7 finds the R&R to be thorough and well-reasoned, without any clear error in law or fact. See
8 United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (United States v. Remsing, 874
9 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court
10 to reconsider matters delegated to magistrate judge when there is clear error or recommendation
11 is contrary to law). The Court accepts and adopts the R&R as the opinion of the Court, pursuant
12 to 28 U.S.C. § 636(b)(1). For the reasons stated in the R&R, the Court remands this case to the
13 ALJ for further consideration of Dr. Hassman’s opinion and to provide his interpretation therof.
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In light of the evaluation on remand, it may also be necessary to reevaluate Plaintiff’s RFC and
work abilities.
Accordingly,
IT IS ORDERED that the Report and Recommendation (Doc. 24) is adopted as the
opinion of the Court.
IT IS FURTHER ORDERED remanding this case for further administrative
proceedings.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
DATED this 29th day of October, 2015.

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