United States District Court, D. Oregon
Michael H. Simon United States District Judge.
States Magistrate Judge Paul Papak issued Findings and
Recommendation in this case on February 5, 2018. ECF 29.
Judge Papak recommended that the Commissioner's decision
finding Plaintiff not to be disabled be affirmed.
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).
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.”
timely filed an objection to the Findings and Recommendation.
Plaintiff also submitted new evidence with his objection,
arguing that this new evidence is material and requires a
remand under sentence six of the Social Security Act. The
district court has discretion whether to consider new
evidence submitted with objections to a Findings and
Recommendation. See 28 U.S.C. § 636(b)(1)
(permitting a court to “receive further evidence”
at its discretion); United States v. Howell, 231
F.3d 615, 621 (9th Cir. 2000) (discussing the Circuit split
on whether a district court must or may consider new evidence
when reviewing de novo a magistrate judge's
findings and recommendation, and concluding that a district
“has discretion, but is not required” to consider
new evidence). Additionally, for purposes of the Social
Security Act, to determine whether to remand a case in light
of new evidence, the Ninth Circuit instructs courts to
examine “whether the new evidence is material to a
disability determination and whether a claimant has shown
good cause for having failed to present the new evidence to
the ALJ earlier.” Mayes v. Massanari, 276 F.3d
453, 462 (9th Cir. 2001). Evidence is material if it
“bear[s] directly and substantially on the matter in
dispute.” Id. (quoting Ward v.
Schweiker, 686 F.2d 762, 764 (9th Cir. 1982)). The
claimant “must additionally demonstrate that there is a
‘reasonable possibility' that the new evidence
would have changed the outcome of the administrative
hearing.” Id. A claimant can demonstrate good
cause for failing to present evidence to the ALJ earlier if
the “evidence could not have been presented at the time
of the administrative hearing.” Embrey v.
Bowen, 849 F.2d 418, 424 (9th Cir. 1988).
evidence Plaintiff provides relates to his military service.
The ALJ discounted some of the medical doctors' opinions
because the ALJ found that those opinions relied on
Plaintiff's self-report that he served 25 years as a
Green Beret and served in combat. The ALJ noted that the VA
had determined in 2009 that Plaintiff's military record
did not support that he served in combat or that he served in
the Special Forces. Plaintiff argues that the additional
evidence shows that he did serve in combat and in the Special
Forces. The Court disagrees.
evidence shows that in 2014 the VA changed its 2009
conclusion that Plaintiff had not been exposed to
any potential post-traumatic stress disorder
(“PTSD”) stressor. In the 2014 report, the VA
noted that Plaintiff self-reported that on one occasion
“a SCUD missile landed near [Plaintiff's] military
base in Saudi Arabia.” ECF 32 at 16. This self-reported
incident qualified as a PTSD stressor. Thus, the VA examiner,
while not making a diagnosis of PTSD, diagnosed Plaintiff
with “other specified trauma disorder” and the VA
increased Plaintiff's disability caused by his
psychiatric disorders from 10 percent to 30 percent.
Id. at 17. This evidence does not contradict the
VA's earlier conclusion that Plaintiff's military
record did not show that he served in combat and did not
serve as a Green Beret or in the Special Forces, including
during his service in Saudi Arabia. In 2009, the VA had noted
that at one point Plaintiff served as a clerk typist assigned
to a Green Beret unit. Although Plaintiff may consider being
a typist assigned to a Green Beret unit as serving in the
Special Forces, it was not considered a combat position by
the VA or considered serving in the Special Forces.
other evidence provided by Plaintiff demonstrates his length
of service and that he received certain ribbons, medals, and
awards. This evidence also does not show that he was involved
in combat operations or served in the Special Forces. At
most, it shows that Plaintiff was a novice paratrooper (he
received a novice paratrooper medal), and that he had three
weeks of basic airborne training. Moreover, this evidence is
not material because the issue is not whether Plaintiff had
some experience as a paratrooper. Even if Plaintiff was
required to train and exercise as a paratrooper in order to
serve as a clerk typist assigned to a Green Beret unit for
the time he served in that position, that evidence is not
necessarily material. Plaintiff's doctors did not rely on
the fact that Plaintiff had some experience as a paratrooper.
The ALJ was concerned that Plaintiff's doctors believed
that Plaintiff served for decades in the Special Forces,
regularly engaging in combat activities that exerted forces
on his body, and that this belief formed part of the basis of
the underlying assumptions made by Plaintiff's doctors.
Because the new evidence does not support that Plaintiff
served for decades in the Special Forces, there is not a
reasonable possibility that it would change the outcome of
the administrative hearing and thus it is not material.
Accordingly, the Court does not find remand to consider the
new evidence warranted.
Plaintiff focuses on his sentence six argument, Plaintiff
also appears to object to other findings and recommendations
by the magistrate judge. Because Plaintiff is proceeding
pro se, the Court liberally construes
Plaintiff's filings as raising additional objections, and
the Court reviews the Findings and Recommendation de
novo. The Court agrees with Judge Papak's reasoning
Court finds that the new evidence submitted by Plaintiff is
not material and does not support remand under sentence six
of 42 U.S.C. § 405(g). The Court ADOPTS the Findings and
Recommendation (ECF 29). The Commissioner's decision is