Arrington v. Commissioner of Social Security Administration

1 WO — 2 — — 3 — 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA — 6 — 7 Lisa Arrington, No. CV-20-00272-TUC-DCB 8 Plaintiff, ORDER 9 v. 10 Commissioner of Social Security Administration, — 11 — Defendant. — 12 — — 13 — 14 This matter was referred to Magistrate Judge Maria S. Aguilera, pursuant to the 15 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 16 Rule (Civil) 72.1(a). She issued a Report and Recommendation (R&R) on May 12, 2021. 17 (Doc. 24: R&R). She recommends remanding the case to the Administrative Law Judge 18 (ALJ) for further proceedings on Plaintiff’s application for Social Security Disability 19 Insurance Benefits. There being no objection, the Court adopts the R&R and remands the 20 case to the Commissioner for further consideration. 21 STANDARD OF REVIEW 22 The duties of the district court, when reviewing a R&R by a Magistrate Judge, are 23 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636 (b)(1). The 24 district court may “accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 26 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make 27 a de novo determination of those portions of the [R&R] to which objection is made.’” 28 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636 (b)(1)). When no 1 objections are filed, the district court does not need to review the R&R de novo. Wang v. 2 Masaitis, 416 F.3d 992 , 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 3 1114, 1121-22 (9th Cir.2003) (en banc). 4 The Court reviews at a minimum, de novo, the Magistrate Judge’s conclusions of 5 law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 6 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); 7 Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will 8 not ordinarily waive question of law, but is a factor in considering the propriety of finding 9 waiver)). 10 The parties were sent copies of the R&R and instructed they had 14 days to file 11 written objections. 28 U.S.C. § 636 (b), see also, Federal Rule of Criminal Procedure 72 12 (party objecting to the recommended disposition has fourteen (14) days to file specific, 13 written objections). No objections have been filed. 14 REPORT AND RECOMMENDATION 15 The Honorable Maria S. Aguilera, United States Magistrate Judge, found that the 16 Administrative Law Judge (ALJ) committed several errors. The ALJ gave legally 17 insufficient reasons for discounting the Plaintiff’s symptom testimony. While there was no 18 evidence of malingering, the ALJ seemed to question Plaintiff’s credibility. The ALJ 19 overstated the effective use of medication to address symptoms and overstated 20 noncompliance. The ALJ generally cherry picked the record to paint the most 21 disadvantageous picture for Plaintiff’s case. The Magistrate Judge found that the ALJ could 22 reject the medical opinions of PA vonKersburg for “germane reasons” because he is not an 23 “acceptable medical source” but instead is an “other source.” The ALJ erred, however, by 24 not giving specific and legitimate reasons supported by substantial evidence for rejecting 25 joint opinions of PA vonKersburg and Dr. McGettigan, who was the treating physician. 26 This error was harmful because Plaintiff’s providers opined that she would miss a 27 minimum of three days of work per month due to her symptoms. The Vocational Expert 28 testified that, to maintain employment, she could miss no more than two days per month 1 || and not miss work in consecutive months. 2 The Magistrate Judge recommends that the ALJ’s decision be reversed and the 3 || case remanded for further development to flush out the record. Limited inquiry was made 4|| during the administrative hearing into Plaintiff's alleged limitations due to symptoms 5 || related to her disabilities: fbromyalgia, degenerative disc disease, obesity, and affective 6 || disorder. The information in the record is outdated especially since later records reported || some improvement. 8 There is no objection to the Magistrate Judge’s recommendation for remand. 9 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) (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 13 || accepts and adopts the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 636 (b)(1). 14|| For the reasons stated in the R&R, the Court remands this case to the Commissioner for 15 || further consideration. 16 Accordingly, 17 IT IS ORDERED that the Report and Recommendation (Doc. 24) is adopted as the 18 |} opinion of the Court. 19 IT IS FURTHER ORDERED remanding this case for further administrative 20 || proceedings consistent with the directives contained herein and, in the R&R. 21 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 22 || accordingly. 23 Dated this 22nd day of June, 2021. — 24 — SS SY a7 Honorable David C. But 28 United StatesPrstrict Judge -3-