1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHELLE H., Case No.: 3:18-CV-02328 JLS (RNB)

12 Plaintiff,

ORDER (1) ADOPTING REPORT

13 v. AND RECOMMENDATION; (2) GRANTING PLAINTIFF’S 14 ANDREW SAUL, Commissioner of

MOTION FOR SUMMARY

Social Security, 15 JUDGMENT; (3) DENYING Defendant. DEFENDANT’S CROSS-MOTION 16

FOR SUMMARY JUDGMENT;

17 (4) REVERSING THE DECISION OF

THE COMMISSIONER; AND

18 (5) REMANDING FOR FURTHER 19 ADMINISTRATIVE ACTION

20 (ECF Nos. 15, 16, 19) 21 22 Presently before the Court are Plaintiff Michelle H.’s Motion for Summary 23 Judgement (“Pl. Mot.,” ECF No. 15) and a Cross-Motion for Summary Judgement filed by 24 Defendant Andrew Saul (“Def.’s Mot.,” ECF No. 16). Magistrate Judge Robert N. Block 25 has issued a Report and Recommendation (“R&R,” ECF No. 19) recommending that the 26 Court grant Plaintiff’s Motion, deny Defendant’s Motion, and that judgment be entered 27 reversing the decision of the Commissioner and remanding this matter for further 28 administrative proceedings. Having reviewed the Motions, Magistrate Judge Block’s 1 R&R, and the underlying administrative record, the Court ADOPTS Magistrate Judge 2 Block’s R&R in its entirety, GRANTS Plaintiff’s Motion, DENIES Defendant’s Motion, 3 REVERSES the decision of the Commissioner, and REMANDS this matter for further 4 administrative action. 5 BACKGROUND 6 Magistrate Judge Block’s R&R contains a complete and accurate recitation of the 7 relevant factual and procedural histories underlying the instant Motions. See R&R at 2–4. 8 This Order incorporates by reference the background as set forth therein. 9 STANDARD OF REVIEW 10 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 11 court’s duties regarding a magistrate judge’s report and recommendation. The district court 12 “shall make a de novo determination of those portions of the report . . . to which objection 13 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also 15 United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely 16 objection, however, “the Court need only satisfy itself that there is no clear error on the 17 face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory 18 committee’s note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 19 ANALYSIS 20 In the present case, neither Party has filed objections to Magistrate Judge Block’s 21 R&R. See generally docket; see also R&R at 19 (ordering that any objection be filed no 22 later than December 18, 2019). Having reviewed the R&R, the Court finds that it is 23 thorough, well-reasoned, and contains no clear error. 24 In the administrative hearing decision, the Administrative Law Judge (“ALJ”) 25 determined that Plaintiff had several severe impairments, including cardiomyopathy, 26 depression, anxiety, Hashimoto’s thyroiditis, asthma, and right shoulder impingement. See 27 R&R at 3 (citing AR 20–21). As part of the determination process, the ALJ also found that 28 Plaintiff’s medically determinable impairments of lumbago and cervicalgia, goiter and 1 esophagitis, and fibromyalgia were nonsevere. Id. (citing AR 20–21). The ALJ then 2 determined that Plaintiff had the residual functional capacity (“RFC”) to perform light 3 work and that Plaintiff was not disabled. Id. at 3–4 (citing AR 30–32). 4 In his R&R, Magistrate Judge Block determined that, in reaching these conclusions, 5 the ALJ did not properly account for Plaintiff’s alleged symptoms and limitations related 6 to fibromyalgia, lumbago, and cervicalgia impairments. Id. at 13. First, Judge Block found 7 the ALJ erred in finding that Plaintiff’s fibromyalgia, lumbago, and cervicalgia were 8 nonsevere impairments. because that finding was not supported by the record. Id. at 7– 9 11(citing AR 21). For example, Judge Block found “the fact that [P]laintiff continued to 10 present with back and neck pain throughout the period relevant to her benefits application 11 belies the ALJ’s . . . assertion” of successful medical management. Id. at 11. 12 Second, Judge Block found the ALJ failed to make a proper adverse credibility 13 determination regarding the Plaintiff’s subjective pain and physical symptom testimony 14 relating to the aforementioned impairments. Id. at 14. The ALJ supported the adverse 15 credibility determination by citing to Plaintiff’s daily activities, the “routine” and 16 “conservative” character of her treatment, the purported success of her medical treatment, 17 and the inconsistencies between her statements and the medical record. Id at 14–17. Judge 18 Block concluded, however, that all of the ALJ’s suggested reasons were either unsupported 19 by Plaintiff’s medical record or legally insufficient to support a “clear and convincing” 20 determination of adverse credibility. Id. at 17–18. (citing Burrell v. Colin, 775 F.3d 21 1133,1136 (9th Cir. 2014)). 22 For these reasons, Magistrate Judge Block concluded that the ALJ erred by failing 23 to consider all the relevant evidence in determining the severity of Plaintiff’s medically 24 determinable impairments as well as failing to incorporate Plaintiff’s subjective testimony 25 in determining Plaintiff’s RFC. Id. at 13. Consequently, Judge Block recommends the 26 Court grant Plaintiff’s Motion, deny Defendant’s Motion, and remand the case for further 27 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Id at 19. 28 /// 1 After review, the Court finds no clear error in Judge Block’s findings and 2 ||recommendations. Further, the Court agrees that remanding pursuant to 42 U.S.C. § 405(g) 3 || for further administrative proceedings is appropriate because additional proceedings could 4 ||remedy the defects in the ALJ’s decision and enhance the administrative record. See id. 5 CONCLUSION 6 For the reasons stated above, the Court: (1) ADOPTS Magistrate Judge Block’s 7 ||R&R (ECF Nos. 15, 16) in its entirety, (2) GRANTS Plaintiffs Motion for Summary 8 ||Judgment, (3) DENIES Defendant’s Cross-Motion for Summary Judgment, 9 REMANDS the case to the Commissioner for further administrative actions. The Clerk 10 || of the Court SHALL ENTER judgment accordingly. 11 IT IS SO ORDERED. 12 ||Dated: June 9, 2020 . tt 13 jen Janis L. Sammartino 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28