Barajas v Astrue

Filing 31

ORDER: The (Doc. 30 ) Report and Recommendation is adopted in its entirety. Defendant's (Doc. 20 ) Ex Parte Motion to Remand is granted. Plaintiff's (Doc. 14 ) Motion for Summary Judgment is denied as moot. The Court remands this case to the Commissioner of Social Security for further proceedings pursuant to sentence four of 42 U.S.C. Section 405(g). Signed by Judge William Q. Hayes on 8/15/2011. (Certified order mailed to SSA, Baltimore, MD.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FRANCISCO BARAJAS,

CASE NO. 10cv2327-WQH (RBB)

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ORDER

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

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Defendant.

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16 HAYES, Judge:
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The matter before the Court is the review of the Report and Recommendation (ECF No.

18 30) issued by United States Magistrate Judge Ruben B. Brooks, recommending that
19 Defendant’s Ex Parte Motion to Remand (ECF No. 20) be granted.
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BACKGROUND
On November 10, 2010, Plaintiff Francisco Barajas filed a Complaint against Defendant

22 Michael J. Astrue, Commissioner of Social Security, for Review of Final Decision of the
23 Social Security Administration (“SSA”) challenging the denial of his claim for disability
24 insurance benefits and supplemental security income. (ECF No. 1). On March 3, 2011,
25 Plaintiff filed a Motion for Summary Judgment. (ECF No. 14).
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On April 26, 2011, Defendant filed an Ex Parte Motion to Remand for Further

27 Proceedings Pursuant to 42 U.S.C. § 405(g). (ECF No. 20). Defendant contends that the
28 examining and treating physician’s opinions conflicted with the administrative law judge’s
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1 residual functional capacity finding, but the administrative law judge did not adequately
2 explain the weight given to the medical opinions.

Defendant also contends that the

3 administrative law judge’s finding that Plaintiff has a marginal education conflicted with the
4 evidence in the record. Defendant seeks remand of the case to allow the administrative law
5 judge to address the errors in his evaluation of the medical evidence and Plaintiff’s education.
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On May 2, 2011, Plaintiff filed an Opposition. (ECF No. 24). Plaintiff contends that

7 the Court should reverse the Commissioner’s decision and find that Plaintiff is disabled. On
8 May 23, 2011, Defendant filed a Reply. (ECF No. 26).
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On June 6, 2011, Magistrate Judge Brooks held a hearing on Defendant’s Ex Parte

10 Motion to Remand. (ECF No. 29). On July 8, 2011, the Magistrate Judge issued the Report
11 and Recommendation. (ECF No. 30). The Report and Recommendation recommends that
12 Defendant’s Ex Parte Motion to Remand be granted. The Magistrate Judge concluded that:
13 “In Barajas’s case, there are outstanding issues that need to be addressed before a disability
14 determination can be made.” Id. at 13. The Magistrate Judge concluded that: “The district
15 court should remand to allow the ALJ to reevaluate the evidence regarding Barajas’s literacy
16 and make the appropriate findings under the applicable listing.” Id. at 15. The Report and
17 Recommendation states:
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This Report and Recommendation will be submitted to the United
States District Court Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Any party may file written
objections with the Court and serve a copy on all parties on or
before July 29, 2011. The document should be captioned “Objections
to Report and Recommendation.” Any reply to the objections shall
be served and filed on or before August 12, 2011. The parties are
advised that failure to file objections within the specified time may waive the
right to appeal the district court’s order.

23 Id. at 15-16 (citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)).
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The docket reflects that no objections to the Report and Recommendation have been

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REVIEW OF THE REPORT AND RECOMMENDATION
The duties of the district court in connection with a report and recommendation of a

28 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b).
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1 The district judge must “make a de novo determination of those portions of the report ... to
2 which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings
3 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district court
4 need not review de novo those portions of a Report and Recommendation to which neither
5 party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States
6 v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
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A district court may remand a Social Security case pursuant to sentence four of 42

8 U.S.C. § 405(g). Hoa Hong Van v. Barnhart, 483 F.3d 600, 605 (9th Cir. 2007). “‘If
9 additional proceedings can remedy defects in the original administrative proceedings, a social
10 security case should be remanded.’” McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)
11 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). “[T]he proper course, except
12 in rare circumstances, is to remand to an administrative agency for additional investigation or
13 explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002).
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After review of the Report and Recommendation, the record, and the submissions of the

15 parties, the Court concludes that the Magistrate Judge correctly recommended that Defendant’s
16 Ex Parte Motion to Remand be granted.
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CONCLUSION
IT IS HEREBY ORDERED that: (1) the Report and Recommendation (ECF No. 30)

19 is ADOPTED in its entirety; (2) Defendant’s Ex Parte Motion to Remand (ECF No. 20) is
20 GRANTED; and (3) Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED as
21 moot. The Court REMANDS this case to the Commissioner of Social Security for further
22 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
23 DATED: August 15, 2011
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WILLIAM Q. HAYES
United States District Judge

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