United States District Court, D. Nevada
ORDER REGARDING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE WILLIAM G. COBB
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge William G. Cobb (ECF No. 15)
(“R&R” or “Recommendation”)
regarding Plaintiff Liana Ruth Whittington's Motion for
Reversal and/or Remand (“Motion to Remand”) (ECF
No. 11) and Defendant Acting Commissioner's Cross-Motion
to Affirm (“Cross-Motion”) (ECF No. 12). The
Court has reviewed Plaintiff's objection to the R&R
(ECF No. 16). Defendant did not file a response. The Court
has also reviewed the administrative recordfiled by Defendant
(ECF Nos. 9, 10).
following reasons, the Court rejects the R&R and grants
Plaintiff's Motion to Remand.
completed an application for disability insurance benefits
under Title II of the Social Security Act, alleging
disability beginning February 1, 2007. (AR 148-49.) The
application was denied initially and on reconsideration. (AR
requested a hearing before an administrative law judge (ALJ).
(AR 113.) ALJ Sara Gilles held a hearing on January 27, 2015.
(AR 39-70.) Plaintiff, who was represented by counsel,
appeared and testified on her own behalf at the hearing.
Testimony was also taken from a vocational expert
(“VE”). The ALJ issued a decision finding
Plaintiff not disabled on April 13, 2015. (AR 20-35.)
Plaintiff requested review, and the Appeals Council denied
the request, making the ALJ's decision the final decision
of the Commissioner. (AR 1-4, 15-16.)
then commenced this action for judicial review pursuant to 42
U.S.C. § 405(g).
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). Where a party
timely objects to a magistrate judge's report and
recommendation, then the court is required to “make a
de novo determination of those portions of the [report and
recommendation] to which objection is made.”
has limited the scope of judicial review of the
Commissioner's decisions to deny benefits under the
Social Security Act. In reviewing findings of fact, the Court
must determine whether the decision of the Commissioner is
supported by substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence is more than a mere scintilla but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Gutierrez v. Comm'r of Soc.
Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal
quotation marks and citations omitted). The court must
consider the entire record as a whole to determine whether
substantial evidence exists, and it must consider evidence
that both supports and undermines the ALJ's decision.
Id. at 523 (citation omitted). “If the
ALJ's finding is supported by substantial evidence, the
court may not engage in second-guessing.”
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). In weighing the evidence and making findings, the
Commissioner must also apply the proper legal standards.
Id. (citations omitted). Courts “may not
reverse an ALJ's decision on account of an error that is
harmless.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012).
raises two objections to the Magistrate Judge's R&R.
The Court will address these objections in turn.