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Noblit v. Colvin

United States District Court, D. Oregon

August 15, 2014

KIZALEE NOBLIT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, [1] Defendant.

MERRILL SCHNEIDER, Schneider Kerr & Gibney Law Offices, Portland, OR, Attorneys for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, OR

DAVID MORADO, Regional Chief Counsel, LARS J. NELSON, Special Assistant United States Attorneys, Seattle, WA, Attorneys for Defendant.

ORDER

ANNA J. BROWN, District Judge.

Magistrate Judge Dennis J. Hubel issued Findings and Recommendation (F&R) (#21) on July 7, 2014, in which he recommends the Court reverse the decision of the Commissioner and remand this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Plaintiff filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

I. Portions of the Findings and Recommendation to which Plaintiff Does Not Object

Plaintiff does not object to the portions of the Findings and Recommendation in which the Magistrate Judge concluded the ALJ erred by improperly disregarding the testimony of lay-witness Charlyn Austin. The Court, therefore, is relieved of its obligation to review the record de novo as to these portions of the Findings and Recommendation. See Shiny Rock Min. Corp v. U.S., 825 F.2d 216, 218. (9th Cir. 1987). See also Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir. 1983).

Having reviewed the legal principles de novo, the Court does not find any error in these portions of the Findings and Recommendation.

II. Portions of the Findings and Recommendation to which Plaintiff Objects

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)( en banc ); United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).

Plaintiff objects to the Magistrate Judge's Findings and Recommendation in which the Magistrate Judge recommends this matter should be remanded for further proceedings rather than for an immediate payment of benefits. The Magistrate Judge concluded "the record is not clear as to whether Plaintiff meets or equals Listing 12.05C, " and "it is far from clear that the ALJ would be required to find Plaintiff disabled if all the evidence were properly evaluated." F&R at 11. Plaintiff argues the Magistrate Judge's conclusion is incorrect because the Magistrate Judge failed to address the arguments raised by Plaintiff in her Reply Brief (#20). Accordingly, by their very nature Plaintiff's Objections merely reiterate the arguments in her Reply Brief.

This Court has carefully considered Plaintiff's Objections and concludes they do not provide a basis to modify this portion of the Findings and Recommendation. The Court also has reviewed the pertinent portions of the record de novo and does not find any error in the Magistrate Judge's Findings and Recommendation with respect to Plaintiff's First through Fifth Causes of Action.

CONCLUSION

The Court ADOPTS Magistrate Judge Hubel's Findings and Recommendation (#21) and, accordingly, REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings.

IT IS SO ORDERED.


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