United States District Court, D. Oregon
Merrill Schneider, Schneider Kerr & Robichaux, Of
Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, Lisa Goldoftas, Special Assistant
United States Attorney, Office of General Counsel, Social
Security Administration, Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge
States Magistrate Judge Youlee You issued Findings and
Recommendation in this case on October 9, 2018. ECF 21.
Magistrate Judge You recommended that the decision of the
Commissioner should be reversed and this matter remanded for
the immediate calculation and award of benefits with regard
to Plaintiff's claim for disabled widow's benefits
and that the decision of the commissioner should be reversed
and this matter remanded for further proceedings with regard
to Plaintiff's claim for disability insurance benefits.
For the reasons that follow, this Court ADOPTS Magistrate
Judge You's Findings and Recommendation.
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 judge'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 judge'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 judge'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 judge's
recommendations for “clear error on the face of the
timely filed an objection (ECF 23), to which Plaintiff
responded. ECF 24. Defendant objects to the portion of
Magistrate Judge You's recommendation finding that a
remand for immediate calculation and award of benefits on
Plaintiff's claim for disabled widow's benefits is
appropriate. Defendant further objects to the portion of
Magistrate Judge You's recommendation that a remand for
further proceedings is necessary to establish Plaintiff's
RFC for her disability insurance benefits.
objects to the Judge You's finding that, as of
Plaintiff's 55th Birthday, she met the disability
requirements for disabled widows' benefits. Defendant
argues, without providing any case law in support, that this
Court lacks jurisdiction to remand for an award of benefits,
as a matter of judicial economy, where the ALJ's findings
demonstrate that the change in Plaintiff's age category
would make Plaintiff disabled under the grids. Defendant does
not address the cases cited by the Judge You approving the
practice of remanding for an award of benefits when changed
circumstances evidence that an award of benefits is proper.
In Lounsburry v. Barnhart, the Ninth Circuit held
that “where application of the grids directs a finding
of disability, that finding must be accepted by the
[Commissioner].” 468 F.3d 1111, 1115-1116 (9th. Cir
2006) (quoting Cooper v. Sullivan, 880 F.2d 1152,
1157 (9th Cir. 1989)). Similarly, in Treichler v.
Commissioner of Social Security Administration, the
Ninth Circuit held that remand for an award of benefits is
proper when no useful purpose would be served by further
proceedings. 775 F.3d 1090, 1099-1100 (9th Cir. 2014).
this Court has already addressed this issue head on. In
Alertas v. Colvin, the plaintiff had reached
“advanced age” while her case was pending and,
with her RFC of light work, a high school education, and a
limitation to unskilled work, under the Medical-Vocational
Guidelines she would have been found eligible for benefits.
2014 WL 2703835 at *14 (D. Or. June 13, 2014). This Court
relied on the Ninth Circuit's decision in Chavez v.
Brown to find that a change in age constituted changed
circumstances when it was outcome determinative under the
Guidelines. See id. (citing Chavez v.
Brown, 844 F.2d 691 (9th Cir. 1988)). Thus, in
Alertas, the Court remanded for an immediate award
of benefits based on Plaintiff's change in age.
determined that Medical-Vocational Rule 202.11 applied to
Plaintiff, and under that rule found Plaintiff was not
disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,
Rule 202.11. Rule 202.11 applies to individuals closely
approaching advanced age who have a limited education,
previous work that was skilled or semiskilled, and no
transferable skills. See id. When all of these
criteria remain the same but Plaintiff's age is changed
to reflect her newly-attained advanced age status, the
Guidelines mandate a finding of disability. See id,
at Rule 202.02. Accordingly, it is clear that given
Plaintiff's recent change in age categories she is
entitled to disabled widows benefits under the Guidelines.
Magistrate Judge You was correct to order a remand for an
award of benefits.
Court has considered the remainder of the Magistrate
Judge's conclusions regarding Plaintiff's subjective
symptom testimony and the medical opinion evidence. The Court
concurs with the Magistrate Judge that the ALJ improperly
discounted some of Plaintiff's subjective symptom
testimony and did not provide specific, legitimate reasons
for discounting some of Dr. Gaffield's handling and
fingering limitations. Accordingly, the Court agrees with
Judge You's recommendation that a remand for further