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Gastelum v. Commissioner of Social Security Administration

United States District Court, D. Arizona

June 13, 2018

Noemi Gastelum, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Honorable Raner C. Collins Chief United States District Judge

         Pending before the Court is a Report and Recommendation (“R & R”) prepared by Magistrate Judge Jacqueline M. Rateau. In the R & R, Magistrate Judge Rateau recommends that the Court enter an order affirming the administrative decision to deny Plaintiff's request for social security benefits. Doc. 18. Gastelum has filed an objection to the R & R. Doc. 20. Defendant has filed a response to the objection. Doc. 22. For the following reasons, the Court shall overrule the objections and accept and adopt the R & R.

         I. Background

         The factual and procedural background in this case is thoroughly detailed in Magistrate Judge Rateau's R & R (Doc. 18). This Court fully incorporates the “Procedural History, ” “Factual Background, ” and “The ALJ's Application of the Five-Step Evaluation Process” sections of the R & R into this Order.

         II. Standard of Review

         The duties of the district court in connection with a R & R 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 the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).

         Where the parties object to an 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.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Under a de novo review, this Court reviews the Administration's decision to determine if the decision is free of legal error and supported by substantial evidence. See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence supports a finding, “a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation omitted). As a result, “[i]f the evidence can reasonably support either affirming or reversing the ALJ's conclusion, [a court] may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

         III. Discussion

         Plaintiff makes three arguments: (1) Magistrate Judge Rateau disregarded the clarifying testimony of the vocational-expert; (2) The ALJ's residual functional capacity assessment did not properly consider Plaintiff's fibromyalgia; and (3) The ALJ improperly weighed the November 2013 MRI results.

         A. Vocational Expert Testimony

         Plaintiff reasserts the claim that substantial evidence does not support the ALJ's step-five decision because the ALJ did not obtain evidence from the vocational expert that Plaintiff could perform significant numbers of jobs given the ALJ's finding. Specifically, Plaintiff argues that the vocational expert never discussed whether there were any jobs if Plaintiff was off task exactly ten percent of the time. However, the vocational expert may have testified that “more than ten percent” off task was “not going to work” but she also did not testify that ten percent would not work. Because the vocational expert found jobs in significant numbers for the ALJ's hypothetical, the ALJ's denial is supported by substantial evidence and must be upheld.

         B. Gastelum's Fibromyalgia

         Plaintiff claims the ALJ erroneously evaluated objective medical evidence of fibromyalgia because the ALJ did not list fibromyalgia as a disability at step 2. However, the ALJ considered the limitations arising from Plaintiff's fibromyalgia at step four. Thus, the ALJ's failure to find fibromyalgia as a severe impairment at step two was a harmless error. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding that ALJ's decision to find an ...


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