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Hoge v. Berryhill

United States District Court, D. Oregon

October 27, 2017

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          Kathryn Tassarini, Harder, Wells, Baron & Manning, P.C. Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, United States Attorney's Office, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204; Lars J. Nelson, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for Defendant.


          Michael H. Simon United States District Judge

         Russell P. Hoge seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act. United States Magistrate Judge John V. Acosta issued Findings and Recommendation (“F&R”) in this case on August 9, 2017. ECF 23. Judge Acosta recommended that the Commissioner's decision be reversed, and that the matter be remanded for further proceedings. For the reasons discussed below, the Court adopts Judge Acosta's F&R in part. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings.


         In a social security case decided in the first instance by a magistrate, 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 Acosta. By statute, the two decisions are entitled to two different standards of review.

         A. 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) (“We affirm a denial of benefits when the Secretary's decision is supported by substantial evidence and is free from legal error). “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 of 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).

         B. 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 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.”

         Judge Acosta's F&R made the following findings and recommendations:

(1) The ALJ erred in rejecting the medical opinion of Dr. Gigena (“Dr. Gigena”), Hoge's treating physician;
(2) The ALJ did not err in rejecting the medical opinion of Dr. Freed (“Dr. Freed”), an examining neuropsychologist;
(3) The ALJ did not err in rejecting Hoge's subjective symptom testimony;
(4) The ALJ erred in its evaluation of lay witness testimony by Ms. Alexa Boucher (“Boucher”); and
(5) The ALJ did not err in rejecting the lay testimony of Ms. Mary Rodriguez (“Rodriguez”).

         Judge Acosta recommended remand. Both Hoge (ECF 26) and Defendant (ECF 25) filed timely objections.

Hoge objects to the following elements of Judge Acosta's F&R:
(1) The finding that the ALJ provided specific and legitimate reasons for discrediting Dr. Freed's medical opinion.
(2) The finding that the ALJ provided a clear and convincing reason for rejecting Hoge's subjective symptom testimony.
(3) The failure of the F&R to adequately address Hoge's claim that his “mental limitations, ” specifically a somatoform disorder, should have been considered in the ALJ's analysis.

         Defendant objects to the following portions of Judge Acosta's F&R:

(1) The finding that it was not reasonable for the ALJ to reject Dr. Gigena's medical opinion.
(2) The failure of the F&R to discuss whether any error in evaluating Boucher's lay testimony was harmless.
(3) The finding that the ALJ erred by failing to provide a germane reason for discrediting Boucher's lay testimony concerning Hoge's limitations.

         The Court has reviewed de novo those portions of Judge Acosta's Findings and Recommendation to which a party has objected. The Court has reviewed for clear error the one portion of the F&R to which neither party has objected, the ALJ's determination regarding the testimony of Ms. Rodriguez. The Court has also reviewed the objections, the responses, the underlying briefing before Judge Acosta, and the relevant portions of the administrative record (“AR”). The Court concludes that (1) the ALJ erred in disregarding Hoge's subjective symptom complaints and testimony; (2) the ALJ erred in rejecting Dr. Gigena's medical opinion; (3) the ALJ did not err in rejecting Dr. Freed's medical opinion; (4) the ALJ did not err in its analysis of Rodriguez's report; (5) the ALJ erred in its analysis of Boucher's report and such error was not harmless; and (6) the ALJ ...

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