United States District Court, D. Arizona
Honorable Raner C. Collins Chief United States District Judge
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
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.
Standard of Review
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).
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
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.
Vocational Expert Testimony
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.
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