United States District Court, D. Oregon
Kathryn Tassarini, Harder, Wells, Baron & Manning, P.C.
Of Attorneys for Plaintiff.
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.
OPINION AND ORDER
Michael H. Simon United States District Judge
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.
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.
The Commissioner's Decision
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).
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).
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.”
Acosta's F&R made the following findings and
(1) The ALJ erred in rejecting the medical opinion of Dr.
Gigena (“Dr. Gigena”), Hoge's treating
(2) The ALJ did not err in rejecting the medical opinion of
Dr. Freed (“Dr. Freed”), an examining
(3) The ALJ did not err in rejecting Hoge's subjective
(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”).
Acosta recommended remand. Both Hoge (ECF 26) and Defendant
(ECF 25) filed timely objections.
Hoge objects to the following elements of Judge Acosta's
(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.
objects to the following portions of Judge Acosta's
(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.
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 ...