Opinion
3:13-cv-00628-HU
08-15-2014
KIZALEE NOBLIT, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
MERRILL SCHNEIDER Schneider Kerr & Gibney Law Offices P.O. Box 14490 Portland, OR 97293 (503) 255-9092 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 (503) 727-1003 DAVID MORADO Regional Chief Counsel LARS J. NELSON Special Assistant United States Attorneys Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 901 Seattle, WA 98104 (206) 615-2531 Attorneys for Defendant
ORDER
MERRILL SCHNEIDER
Schneider Kerr & Gibney Law Offices
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorneys for Plaintiff S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
LARS J. NELSON
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
(206) 615-2531
Attorneys for Defendant
BROWN, Judge.
Magistrate Judge Dennis J. Hubel issued Findings and Recommendation (F&R) (#21) on July 7, 2014, in which he recommends the Court reverse the decision of the Commissioner and remand this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Plaintiff filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
I. Portions of the Findings and Recommendation to which Plaintiff Does Not Object
Plaintiff does not object to the portions of the Findings and Recommendation in which the Magistrate Judge concluded the ALJ erred by improperly disregarding the testimony of lay-witness Charlyn Austin. The Court, therefore, is relieved of its obligation to review the record de novo as to these portions of the Findings and Recommendation. See Shiny Rock Min. Corp v. U.S., 825 F.2d 216, 218. (9 Cir. 1987). See also Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8 Cir. 1983).
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted for Michael J. Astrue as Defendant in this case. No further action need be taken to continue this case by reason of the last sentence of Section 205(g) of the Social Security Act, 42 U.S.C. § 405.
Having reviewed the legal principles de novo, the Court does not find any error in these portions of the Findings and Recommendation.
II. Portions of the Findings and Recommendation to which Plaintiff Objects
When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9 Cir. 2003)(en banc); United States v. Bernhardt, 840 F.2d 1441, 1444 (9 Cir. 1988).
Plaintiff objects to the Magistrate Judge's Findings and Recommendation in which the Magistrate Judge recommends this matter should be remanded for further proceedings rather than for an immediate payment of benefits. The Magistrate Judge concluded "the record is not clear as to whether Plaintiff meets or equals Listing 12.05C," and "it is far from clear that the ALJ would be required to find Plaintiff disabled if all the evidence were properly evaluated." F&R at 11. Plaintiff argues the Magistrate Judge's conclusion is incorrect because the Magistrate Judge failed to address the arguments raised by Plaintiff in her Reply Brief (#20). Accordingly, by their very nature Plaintiff's Objections merely reiterate the arguments in her Reply Brief.
This Court has carefully considered Plaintiff's Objections and concludes they do not provide a basis to modify this portion of the Findings and Recommendation. The Court also has reviewed the pertinent portions of the record de novo and does not find any error in the Magistrate Judge's Findings and Recommendation with respect to Plaintiff's First through Fifth Causes of Action.
CONCLUSION
The Court ADOPTS Magistrate Judge Hubel's Findings and Recommendation (#21) and, accordingly, REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings.
IT IS SO ORDERED.
DATED this 15th day of August, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge