United States District Court, D. Arizona
HONORABLE DAVID C. BURY UNITED STATES DISTRICT JUDGE.
matter was referred to Magistrate Judge Bruce G. Macdonald,
pursuant to Rules of Practice for the United States District
Court, District of Arizona (Local Rules), Rule (Civil)
72.1(a). He issued a Report and Recommendation (R&R) on
August 20, 2019. (R&R (Doc. 18)). He recommends remanding
the case to the Administrative Law Judge (ALJ) for further
proceedings on Plaintiff's Application for Supplemental
Social Security Income.
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. §
636(b)(1). When the parties object to a Report and
Recommendation (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.'” 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 1114, 1121-22
(9th Cir.2003) (en banc).
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.
Longale alleges an onset date of disability of October 15,
2012. The ALJ made his decision at step five of the
sequential evaluation process for assessing a claim of
disability. At step one, the ALJ determined the Plaintiff was
not doing substantial gainful activity. (R&R (Doc. 18) at
23.) At step two, the ALJ found Plaintiff has the following
impairments: anxiety disorder,
attention-deficit/hyperactivity disorder, and alcohol and
substance abuse disorder. Id. At step three, the ALJ
found the Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments and determined he
has the residual functional capacity (RFC) to perform a full
range of work at all exertional levels, except for
non-exertional limitations. Id. at 23-24. He is
limited to “performing only simple, routine tasks;
cannot perform such tasks in a fast-paced production
environment; is limited to only occasional interaction with
supervisors and coworkers, and further limited to brief,
intermittent, and superficial public contact; and can attend
and concentrate in 2-hour blocks of time throughout an 8-hour
workday with the customary 10 to 15 minute break and 30 to 60
minute lunch break period.” Id. At step four,
“the ALJ found that the claimant is unable to perform
any past relevant work, but at step five, the ALJ found that
after ‘[c]onsidering the claimant's age, education,
work experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 416.969 and
416.969(a)).'” Id. at 24 (citing AR at
63)). Accordingly, the ALJ found the Plaintiff is not
disabled and denied him benefits.
Magistrate Judge found that the ALJ erred by failing to
mention Plaintiff's diagnosis of schizoaffective disorder
and failing to adequately articulate reasons for discounting
Plaintiff's symptom testimony. This error called into
question the ALJ's RFC calculation. The Magistrate Judge
found the ALJ consistently relied on a conclusory finding of
lack of credibility followed by a summary of the medical
record and, therefore, failed to identify specific reasons
for discrediting the Plaintiff's testimony regarding the
severity of his symptoms. Because the record was not clear
whether the ALJ would be required to award benefits, the
Magistrate Judge recommended remand on an open record, with
instruction to reassess Plaintiff's symptom testimony and
account for all medical diagnoses. Id. at 30-31.
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
there are no objections and review has been waived,
nevertheless, the Court nev 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. Ylst, 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)
(United States v. Remsing, 874 F.2d 614, 617-618
(9th Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A)
(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 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 as recommended by the Magistrate Judge.
IS ORDERED that the Report and Recommendation [Doc.
# 18] is adopted as the opinion of the Court.
IS FURTHER ORDERED remanding this case for further
IS FURTHER ORDERED that the Clerk of the Court shall