Opinion
Case No. LA CV 15-03306 VBF(JC)
08-24-2016
STEVEN LAMAR LUNDY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), defendant's Objections to the Report and Recommendation ("Objections"), and plaintiff's Reply to the Objections ("Reply"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.
To the extent defendant argues that plaintiff waived his claim that the ALJ erroneously failed to consider Listing 12.05C, purportedly because plaintiff "[n]ever argued that he met or equaled [the listing] at any stage during the administrative proceedings . . ." (Objections at 1), defendant's argument lacks merit. The Administrative Record ("AR") reflects that plaintiff's attorney specifically raised the claim in a "letter brief" to the Appeals Counsel in connection with plaintiff's request for review. (AR 258). Thus, plaintiff has adequately preserved the claim for review by this Court. See generally Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (Social security claimant must raise issue at some point during administrative proceedings in order to preserve issue for appeal in federal court) (citing Avol v. HHS, 883 F.2d 659, 660 (9th Cir. 1989)); Harhaw v. Colvin, 2014 WL 972269, *4 (E.D. Cal. Mar. 12, 2014) ("A claimant is not necessarily required to raise all issues before both the ALJ and the Appeals Council in order to preserve them on appeal to the district court.") (citations omitted), aff'd, 616 Fed. Appx. 316 (9th Cir. 2015).
Defendant's other objections are essentially based on the same arguments defendant previously raised, and which the Report and Recommendation properly concludes have no merit.
IT IS HEREBY ORDERED
(1) that the decision of the Commissioner of Social Security is reversed, in part, and the matter is remanded for further administrative action consistent with the Report and Recommendation; and
(2) that separate Judgment be entered accordingly.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment on counsel for the parties.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: Wednesday, August 24, 2016
/s/_________
Hon. Valerie Baker Fairbank
Senior United States District Judge