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Rambow v. Berryhill

United States District Court, D. Oregon

September 26, 2017

MELISSA LYNN RAMBOW, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON, DISTRICT JUDGE

         United States Magistrate Judge Paul Papak issued Findings and Recommendation (“F&R”) in this case on August 31, 2017. ECF 21. Judge Papak recommended that the finding of the Commissioner of Social Security (“Commissioner”) that Plaintiff is not disabled be affirmed.

         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). 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.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not 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 Fed.R.Civ.P. 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.”

         Plaintiff timely filed an objection (ECF 23), to which Defendant responded. ECF 25. Plaintiff objects that the F&R: (1) failed to address Plaintiff's argument that the Administrative Law Judge (“ALJ”) failed to comply with Social Security Rule (“SSR”) 83-20; (2) improperly concluded that the ALJ did not err in failing to require a neurocognitive examination of Plaintiff; (3) improperly concluded that the ALJ did not err at step two in the five-step social security analysis; (4) improperly concluded that the ALJ did not err in evaluating the medical testimony; and (5) improperly concluded that the ALJ did not err in analyzing Plaintiff's subjective testimony. The Court has reviewed de novo these portions of the F&R, Plaintiff's objections, Defendant's response, the underlying briefing before Judge Papak, and the relevant portions of the administrative record. For the reasons discussed below, the F&R is adopted in part.

         DISCUSSION

         A. SSR 83-20

         Plaintiff argued in her briefing before the Magistrate Judge that the ALJ erred by failing to comply with SSR 83-20. This alleged error was not addressed in the F&R.

         SSR 83-20 requires, in relevant part,

In addition to determining that an individual is disabled, the decisionmaker must also establish the onset date of disability.
* * *
Precise Evidence Not Available-Need for Inferences
In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made.
If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual's condition. . . . The impact ...

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