Plas v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sean Plas, No. CV-20-00286-TUC-DCB (LAB) 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On June 22, 2021, Magistrate Judge Leslie A. Bowman issued a Report and 16 Recommendation (R&R), (Doc. 24), pursuant to the Rules of Practice for the United States 17 District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). She recommends 18 that this case be remanded to the Commissioner of the Social Security Administration for 19 further proceedings. She found the Administrative Law Judge (ALJ) erred at step three of 20 the disability analysis because there was not substantial evidence to support his conclusion 21 that Plas does not meet the “C2” criteria of Listing 12.06. 20 C.F.R. § Pt. 404, Subpt. P, 22 App. 1. The Commissioner has acknowledged several listed impairments that preclude 23 substantial gainful activity and result in an award of disability benefits. Plaintiff alleges 24 disability due to Asperger’s Syndrome, Bi-Polar Disorder, Oppositional Defiant Disorder, 25 Attention Deficit Disorder, and Social Anxiety Disorder. Listing 12.06 includes Anxiety 26 and obsessive-compulsive disorders, if satisfied by A and B, or A and C criteria. 27 28 1 STANDARD OF REVIEW 2 The duties of the district court, when reviewing a R&R by a Magistrate Judge, are 3 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 4 district court may “accept, reject, or modify, in whole or in part, the findings or 5 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 6 636(b)(1). When the parties object to a R&R, “[a] judge of the [district] court shall make 7 a de novo determination of those portions of the [R&R] to which objection is made.” 8 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no 9 objection is filed, the district court does not need to review the R&R de novo. Wang v. 10 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 11 1114, 1121-22 (9th Cir.2003) (en banc). 12 The parties were sent copies of the R&R and instructed they had 14 days to file 13 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 14 (party objecting to the recommended disposition has fourteen (14) days to file specific, 15 written objections). To date, no objections have been filed. 16 REPORT AND RECOMMENDATION 17 The R&R explains the reasons why the administrative record compiled by the ALJ 18 does not substantially support his step 3 decision that the severity of Plaintiff’s claimed 19 disability does not meet the C2 criteria for Listing 12.06, Anxiety and obsessive- 20 compulsive disorders. At step three of the disability analysis, the ALJ must determine 21 whether the claimant’s impairment meets or equals one of several listed impairments. For 22 Listing 12.06, the ALJ considered Plaintiff’s impairment as “serious and persistent” under 23 subsection C as being medically documented over a period of two years. He found under 24 C1 that there was evidence of medical treatment, mental health therapy, etc that diminishes 25 the symptoms and signs of his mental disorder. The ALJ found, however, that the Plaintiff 26 did not meet the C2 criteria of “marginal adjustment, that is, [having] minimal capacity to 27 adapt to changes in [his] environment or to demands that are not already part of [his] daily 28 life (“see 12.00G2c).” (R&R (Doc. 24) at 8.) 1 The Magistrate Judge explained in detail why as a matter of law and fact the 2 evidence relied on by the ALJ did not support his C2 conclusions. On remand, the ALJ 3 shall redo the step 3 disability analysis in accordance with the findings and explanations 4 made in the R&R. 5 As noted above, the Court makes a de novo determination of those portions of the 6 report where there is an objection, and when no objection is made, arguments to the 7 contrary are waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to 8 object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee 9 Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 10 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that 11 there is no clear error on the face of the record in order to accept the recommendation). 12 Where there are no objections and review is waived, the Court nevertheless reviews at a 13 minimum, de novo, the conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th 14 Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law 15 by a magistrate judge reviewed de novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 16 1991) (failure to object standing alone will not ordinarily waive question of law, but is a 17 factor in considering the propriety of finding waiver)). 18 CONCLUSION 19 The Court finds the R&R to be thorough and well-reasoned, without any clear error 20 in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 21 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider matters delegated to 22 magistrate judge when there is clear error or recommendation is contrary to law)). The 23 Court accepts and adopts the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 24 636(b)(1). For the reasons stated in the R&R, the Court remands this case to the ALJ for 25 further proceedings. 26 Accordingly, 27 IT IS ORDERED that the Report and Recommendation (Doc. 24) is adopted as the 28 opinion of the Court. 1 IT IS FURTHER ORDERED remanding this case for further administrative || proceedings. 3 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 4|| accordingly. 5 Dated this 27th day of July, 2021. 6 SS ° Honorabje David C. But 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -_4-