United States District Court, D. Oregon
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
States Magistrate Judge Jolie A. Russo issued Findings and
Recommendation in this case on May 29, 2019. ECF 17.
Magistrate Judge Russo recommended that the decision of the
Commissioner be reversed and remanded for further
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
and Defendant both timely filed objections (ECF 19, 22).
Plaintiff objects to the portion of Magistrate Judge
Russo's recommendation finding that the ALJ provided
specific and legitimate reasons for rejecting the opinion of
Dr. Johnson, the medical expert, and also objects to the
decision to remand the case for further proceedings, rather
than an immediate award of benefits. Defendant objects to
Judge Russo's conclusion that a remand is necessary to
determine the disability onset date taking into account
Plaintiff's functional and memory limitations.
Court has reviewed both parties' objections and the
Findings and Recommendation. The Court agrees with the
Findings and Recommendation that the ALJ provided inadequate
explanation for choosing October 1, 2016 as the disability
onset date, and the ALJ did not discuss any of Plaintiffs
medical or mental impairments other than her respiratory
issues when landing upon October 1, 2016 as the onset date.
The ALJ did not make a finding regarding Plaintiff's
credibility as to her memory issues and anxiety issues, nor
did the ALJ make a finding as to whether and when those
issues would have prevented Plaintiff from performing jobs
that exist in the national economy. Defendant urges the Court
to review the medical evidence in the record and reach its
own conclusion as to when Plaintiff's memory issues and
anxiety issues became so severe that Plaintiff ceased
engaging in activities inconsistent with Plaintiff's
claims of disability. But the Court may not affirm the
opinion of the ALJ on grounds that the ALJ did not rely upon.
Accordingly, the Court agrees with Judge Russo that a remand
is necessary for the ALJ to consider Plaintiff's
testimony regarding her memory issues and anxiety issues and
when those issues prevented Plaintiff from engaging in
Court has reviewed the remainder of the objections and finds
no error in the Findings and Recommendation. The Court finds
that the ALJ provided specific and legitimate reasons for
giving less weight to the opinion of Dr. Johnson and agrees
that a remand is appropriate, rather than an award of
benefits. For those portions of Magistrate Judge Russo's
Findings and Recommendation to which neither party has
objected, the Court has reviewed those matters for clear
error on the face of the record. No. such error is apparent.
Court ADOPTS Magistrate Judge Russo's
Findings and Recommendation, ECF 17. The Commissioner's
decision that Plaintiff was not disabled before October 1,
2016 is reversed and remanded for further proceedings
consistent with this Order.
IS SO ORDERED.
 In the interest of privacy, this
opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. Where
applicable, this opinion uses the same designation for a