United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Ulmaskhon Rustamova ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for supplemental security income under Title II of the Social Security Act. United States Magistrate Judge Stacie F. Beckerman issued Findings and Recommendation ("F&R") in this case on March 19, 2015. Dkt. 23. Judge Beckerman recommended granting the Commissioner's motion to remand for further administrative proceedings. Dkt. 20. Plaintiff timely filed objections, to which Defendant responded. Dkts 25, 26. For the reasons below, the Court declines to adopt the F&R and remands this case for the immediate award of benefits.
STANDARD OF REVIEW
In a social security case decided in the first instance by a magistrate judge, review of the magistrate's opinion entails review of the underlying social security decision. Therefore, two decisions in this case are subject to review by this Court-the first by the Commissioner, and the second by Judge Beckerman. By statute, the two decisions are entitled to two different standards of review.
A. The F&R
Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3). For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."). Nor, however, does the Act "preclude further review by the district judge sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Federal Rule of Civil Procedure 72(b) recommend that "[w]hen no timely objection is filed, " the Court review the magistrate's recommendations for "clear error on the face of the record."
B. The Commissioner's Decision
The Court must affirm the Commissioner's decision if it is free of legal error and its findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
In reviewing the Commissioner's decision, the Court "must consider the entire record as a whole." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation marks omitted). The Court may not affirm the Commissioner "simply by isolating a specific quantum of supporting evidence"; nor may the Court affirm the Commissioner on a ground upon which the Commissioner did not rely. Id. (quotation marks omitted); see also Bray, 554 F.3d at 1226. But as long as "the agency's path may reasonably be discerned, " the Court must affirm the agency's decision, even though the agency may have explained it with "less than ideal clarity." Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (quotation marks omitted).
A. Plaintiff's Application and First Appeal
The Court adopts the following discussion of the facts and procedural history of this case as articulated by Judge Beckerman in the F&R:
Plaintiff is a forty-nine-year-old Uzbek woman who has the equivalent of an eighth-grade education. Her past relevant work experience consists of employment as a dairy farm laborer. She cannot speak, read, or understand English. After immigrating to the United States from Russia, where she received a disability pension, Plaintiff filed an application for supplemental security income on November 29, 2006, alleging a disability onset date of November 1, 2004. Plaintiff claims that she is disabled and unable to work due to degenerative disc disease, degenerative joint disease in her left knee, obesity, chronic pain syndrome, memory loss, and depression.
This is Plaintiff's second appeal to the district court. In Rustamova v. Astrue, No. 3:11cv-751-BR, 2012 WL 2178981, at *3 (D. Or. June 13, 2012) (" Rustamova I "), as in the present litigation, the Commissioner acknowledged that the Administrative Law Judge ("ALJ") committed reversible error during administrative proceedings. In Rustamova I, the Commissioner requested, and was granted, a remand for further proceedings, so that the ALJ could: (1) reevaluate the opinion of a physician; (2) further consider Plaintiff's mental impairments of posttraumatic stress disorder and auditory hallucinations; (3) properly consider the lay witness testimony provided by Plaintiff's son; (4) consider Plaintiff's obesity; (5) update the record to include a Psychiatric Review Technique Form and/or psychiatric consultative examination; (6) reassess Plaintiff's residual functional capacity assessment ("RFC"); and (7) "if necessary, consider further at [step-five of the sequential process], with the assistance of additional testimony by a [vocational expert], whether [Plaintiff] is able to perform other work in the national economy[.]" Id. at *3 & 7.
As in this second appeal, the parties in Rustamova I disputed whether the Commissioner had met her step-five burden of proving that Plaintiff is able to perform other work in the national economy. At the first administrative hearing in January 2010, a vocational expert ("VE") testified that there "may be some types of assembly [jobs] that would be feasible... but certainly not the full range of those occupations." AR 423. The VE further testified that while thousands of relevant assembly jobs exist, those numbers would be reduced in light of Plaintiff's sedentary limitations and language barrier:
We would definitely be looking at a reduction of the numbers. State-wide figures show 8, 900 with just over 288, 000 nationally. We'd be looking at a reduction in numbers both due to the sedentary factor and the language barrier. And there's really not a way to gauge what percentage of jobs would be rendered infeasible, but the majority of them.
AR 424. The ALJ asked, "[w]ould you say a thousand - or more than a thousand would be available at the sedentary level?" Id. The VE responded, "at the sedentary level, yes[, ]" but then clarified, "[b]ut if there's complete illiteracy in English, even in terms of giving and receiving basic instructions, that's - in my ...