United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
January 7, 2019, Magistrate Judge Youlee Yim You issued her
Findings and Recommendation (F&R) , recommending that
the Commissioner's decision be reversed and this case
remanded for the immediate payment of benefits. Neither party
filed objections to the F&R. For the reasons below, I
adopt Judge You's F&R in part and REMAND for further
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
A. brings this action as successor to his deceased wife
Shanna A. Shanna A. filed a claim for Disability Insurance
Benefits (DIB) in 2015, alleging a disability onset date of
October 2010. She was last insured for DIB in December 2010.
After two hearings, an ALJ determined that Shanna A. did not
have an impairment that significantly limited her ability to
perform work-related activities prior to her date last
insured. Therefore, the Commissioner denied Shanna A.'s
claim for DIB.
A. was diagnosed with Stage IV ovarian cancer in 2012,
although one doctor theorized that the cancer had
metastasized in her lungs in October 2010. F&R  at
14-15. This diagnosis was made by using the size of the
metastases in 2012 and assumed rates of cell division to
determine that cancerous cells must have been present in
Shanna A.'s lungs in 2010. Id. While the ALJ
found that Shanna A. had the medically determinable
impairment of an ovarian cyst, the ALJ did not find that
ovarian cancer was a medically determinable impairment prior
to Shanna A.'s date last insured. Judge You found that
the ALJ erred in not listing ovarian cancer as a medically
determinable impairment because the metastases were
identified by a CT scan, which is a "medically
acceptable clinical diagnostic technique." F&R 
at 4-5 (quoting Ukolov v. Barnhart, 420 F.3d 1002,
1005 (9th Cir. 2005)). And, although Shanna A. was diagnosed
in 2012, "medical evaluations made after the expiration
of a claimant's insured status are relevant to an
evaluation of the pre-expiration conditions."
Id. at 5 (quoting Lester v. Chater, 81 F.3d
821, 832 (9th Cir. 1995)).
with Judge You's finding that ovarian cancer could be a
medically determinable impairment in 2010 based on the CT
scan and diagnosis in 2012. The ALJ's error in failing to
include this impairment was harmless, however, because the
ALJ did not ignore any symptoms otherwise attributable to
ovarian cancer. After evaluating all of Shanna A.'s
symptoms, the ALJ determined that Shanna A. was not
significantly limited in her ability to perform work-related
activities. Although this error was harmless, upon remand the
Commissioner should address whether ovarian cancer is a
medically determinable impairment for the reasons given in
You also found that the ALJ erred by improperly discounting
Shanna A.'s subjective symptom testimony. F&R  at
6-10. The ALJ concluded that Shanna A.'s testimony
regarding the disabling effect of her abdominal pain was
contradicted primarily by a failure to report sharp abdominal
pain or seek aggressive medical treatment. Tr. 18. In
particular, the ALJ noted that Shanna A. sought emergency
medical care for severe abdominal pain in October 2010 but
did not seek medical care for abdominal pain again prior to
her date last insured. Id., I agree with Judge
You's finding that the absence of a recurring severe pain
is not inconsistent with Shanna A.'s testimony that she
had a lesser degree of pain that was nonetheless
debilitating. Because the ALJ did not provide a clear and
convincing reason for discounting this testimony and instead
found that Shanna A.'s abdominal pain presented "no
more than minimal limitation in basic work activities,"
I agree with Judge You that remand is appropriate.
You also assigned error to the ALJ's decision to discount
Shanna A.'s testimony to the extent that it was premised
solely on a lack of medical evidence. F&R  at 10. I
agree that the ALJ cannot rely solely on lack of medical
evidence to discount symptom testimony, but I disagree that
the ALJ discounted portions of Shanna A.'s testimony
based solely on a lack of medical evidence. When discussing
Shanna A.'s testimony about her fatigue in October 2010,
the ALJ stated that "the claimant often denied being
fatigued until much later after her onset date." Tr. 18.
This points to evidence contradicting testimony about
fatigue, not a lack of evidence. The ALJ did not, however,
cite to the record in support of the statement that Shanna A.
denied being fatigued until much later after her onset date.
Because a court may not affirm the ALJ on a grounds upon
which the ALJ did not rely, the ALJ's lack of citation to
contradictory evidence warrants remand. See Burrell v.
Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
discounted the testimony of several of Shanna A.'s family
members, citing inconsistencies with Shanna A.'s
testimony. The ALJ also rejected the testimony of some family
members because it conflicted with the medical record. Judge
You found that the ALJ erred in discounting this testimony
for the same reasons that she found the ALJ erred in
discounting Shanna A.'s symptom testimony. F&R 
at 22-23. I again agree with Judge You that Shanna A.'s
failure to seek treatment for sharp abdominal pain after
October 2010 is not necessarily inconsistent with the
testimony of her family members that she suffered from
disabling abdominal pain. But, for the reasons stated above,
I also disagree with Judge You's finding that the
ALJ's decision to discount witness testimony was based
solely on a lack of medical evidence.
I agree with Judge You that the ALJ erred in discrediting
testimony by Shanna A. and her family members, remand of this
case is appropriate. But I disagree with Judge You's
finding that, on remand, the Commissioner is required to find
that Shanna A. met the requirements for Listing 13.23,
"Cancers of the Female Genital Tract," prior to her
date last insured. F&R  at 16. This is a question
that is appropriately addressed in the first instance by the
Commissioner. Nor would the Commissioner be required to find
Shanna A. disabled if her symptom testimony or the testimony
of her family members were credited as true. Although the
medical evidence in this case is voluminous, the ALJ's
failure to cite to the medical record leaves room for
development. Further proceedings will serve the purpose of
identifying which portions of the record are inconsistent
with the testimony that the ALJ rejected. Therefore, remand
for further proceedings is appropriate. Garrison v.
Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
reasons described above, I ADOPT the F&R  in part.
The Commissioner's decision is REVERSED and this case ...