Pasqual v. Commissioner of Social Security Administration

1 WO 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 v. Commissioner of Social Security Administration, Defendant.

15 This matter was referred to Magistrate Judge Jacqueline M. Rateau, pursuant to Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). She issued a Report and Recommendation (R&R) on November 17, 2022. (Doc. 25.) She recommends remanding the case to the Administrative Law Judge (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 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or 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 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 objections are filed, the district court does not need to review the R&R de novo. Wang v. 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 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). To date, no objections have been filed.

7 REPORT AND RECOMMENDATION 8 The Honorable Jacqueline M. Rateau, United States Magistrate Judge, considered the ALJ’s determination that Plaintiff was only mildly limited in her abilities and therefore, not disabled at step two of the evaluation process. The Magistrate Judge agreed with the Plaintiff that the ALJ failed to consider how her alleged physical pain informs her mental conditions. This erroneous non-severe determination at step two was harmful because it stopped steps three through five, which would have required the ALJ to formulate an RFC by considering all the Plaintiff’s medically determinable impairments, even those that are not sever. If the RFC is light and her non-exertional limitations eliminate her past relevant work, this would mandate a finding of disability. The Magistrate Judge recommended remand for further consideration because, failure to complete steps three through five, 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 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 Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 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).

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 || 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 || 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 || 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.

SS Honorable David C. But 26 United StatesPrstrict Judge -3-