Pasqual v. Commissioner of Social Security Administration

D. Arizona

Pasqual v. Commissioner of Social Security Administration

DecidedFebruary 27, 2023

Docket4:21-cv-00328

StatusUnknown

This text of Pasqual v. Commissioner of Social Security Administration (Pasqual v. Commissioner of Social Security Administration) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pasqual v. Commissioner of Social Security Administration, (D. Ariz. 2023).

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Tina Pasqual, No. CV-21-00328-TUC-DCB (JR)

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This matter was referred to Magistrate Judge Jacqueline M. Rateau, pursuant to 16 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 17 Rule (Civil) 72.1(a). She issued a Report and Recommendation (R&R) on November 17, 18 2022. (Doc. 25.) She recommends remanding the case to the Administrative Law Judge 19 (ALJ) for a determination at steps three through five of the disability determination. 20 STANDARD OF REVIEW 21 The duties of the district court, when reviewing a R&R of a Magistrate Judge, are 22 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 23 district court may “accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 25 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make 26 a de novo determination of those portions of the [R&R] to which objection is made.’” 27 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no 28 objections are filed, the district court does not need to review the R&R de novo. Wang v. 1 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121-22 (9th Cir.2003) (en banc). 3 The parties were sent copies of the R&R and instructed they had 14 days to file 4 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 5 (party objecting to the recommended disposition has fourteen (14) days to file specific, 6 written objections). To date, no objections have been filed. 7 REPORT AND RECOMMENDATION 8 The Honorable Jacqueline M. Rateau, United States Magistrate Judge, considered 9 the ALJ’s determination that Plaintiff was only mildly limited in her abilities and therefore, 10 not disabled at step two of the evaluation process. The Magistrate Judge agreed with the 11 Plaintiff that the ALJ failed to consider how her alleged physical pain informs her mental 12 conditions. This erroneous non-severe determination at step two was harmful because it 13 stopped steps three through five, which would have required the ALJ to formulate an RFC 14 by considering all the Plaintiff’s medically determinable impairments, even those that are 15 not sever. If the RFC is light and her non-exertional limitations eliminate her past relevant 16 work, this would mandate a finding of disability. The Magistrate Judge recommended 17 remand for further consideration because, failure to complete steps three through five, 18 leaves the record incomplete for an award of benefits. 19 Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those 20 portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the 21 court shall make a de novo determination of those portions of the report or specified 22 proposed findings and recommendations to which objection is made.") To the extent that 23 no objection has been made, arguments to the contrary have been waived. McCall v. 24 Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives 25 right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 26 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 27 objection is filed, the court need only satisfy itself that there is no clear error on the face of 28 the record in order to accept the recommendation). 1 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. □□ Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will || not ordinarily waive question of law but is a factor in considering the propriety of finding || waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear 8 || error in law or fact. See (United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) 9|| (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider matters || delegated to magistrate judge when there is clear error or recommendation is contrary to 11 || law). The Court accepts and adopts the R&R as the opinion of the Court, pursuant to 28 12|| 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 at steps three through five. 14 Accordingly, 15 IT IS ORDERED that the Report and Recommendation (25) is adopted as the opinion of the Court. 17 IT IS FURTHER ORDERED remanding this case for further administrative proceedings. 19 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment || accordingly. 21 Dated this 24th day of February, 2023. 22 SS Honorable David C. But 26 United StatesPrstrict Judge 27 28

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Tina Pasqual, No. CV-21-00328-TUC-DCB (JR)

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This matter was referred to Magistrate Judge Jacqueline M. Rateau, pursuant to 16 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 17 Rule (Civil) 72.1(a). She issued a Report and Recommendation (R&R) on November 17, 18 2022. (Doc. 25.) She recommends remanding the case to the Administrative Law Judge 19 (ALJ) for a determination at steps three through five of the disability determination. 20 STANDARD OF REVIEW 21 The duties of the district court, when reviewing a R&R of a Magistrate Judge, are 22 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 23 district court may “accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 25 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make 26 a de novo determination of those portions of the [R&R] to which objection is made.’” 27 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no 28 objections are filed, the district court does not need to review the R&R de novo. Wang v. 1 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121-22 (9th Cir.2003) (en banc). 3 The parties were sent copies of the R&R and instructed they had 14 days to file 4 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 5 (party objecting to the recommended disposition has fourteen (14) days to file specific, 6 written objections). To date, no objections have been filed. 7 REPORT AND RECOMMENDATION 8 The Honorable Jacqueline M. Rateau, United States Magistrate Judge, considered 9 the ALJ’s determination that Plaintiff was only mildly limited in her abilities and therefore, 10 not disabled at step two of the evaluation process. The Magistrate Judge agreed with the 11 Plaintiff that the ALJ failed to consider how her alleged physical pain informs her mental 12 conditions. This erroneous non-severe determination at step two was harmful because it 13 stopped steps three through five, which would have required the ALJ to formulate an RFC 14 by considering all the Plaintiff’s medically determinable impairments, even those that are 15 not sever. If the RFC is light and her non-exertional limitations eliminate her past relevant 16 work, this would mandate a finding of disability. The Magistrate Judge recommended 17 remand for further consideration because, failure to complete steps three through five, 18 leaves the record incomplete for an award of benefits. 19 Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those 20 portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the 21 court shall make a de novo determination of those portions of the report or specified 22 proposed findings and recommendations to which objection is made.") To the extent that 23 no objection has been made, arguments to the contrary have been waived. McCall v. 24 Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives 25 right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 26 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 27 objection is filed, the court need only satisfy itself that there is no clear error on the face of 28 the record in order to accept the recommendation). 1 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. □□ Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will || not ordinarily waive question of law but is a factor in considering the propriety of finding || waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear 8 || error in law or fact. See (United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) 9|| (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider matters || delegated to magistrate judge when there is clear error or recommendation is contrary to 11 || law). The Court accepts and adopts the R&R as the opinion of the Court, pursuant to 28 12|| 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 at steps three through five. 14 Accordingly, 15 IT IS ORDERED that the Report and Recommendation (25) is adopted as the opinion of the Court. 17 IT IS FURTHER ORDERED remanding this case for further administrative proceedings. 19 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment || accordingly. 21 Dated this 24th day of February, 2023. 22 SS Honorable David C. But 26 United StatesPrstrict Judge 27 28

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