Johnston v. Commissioner Social Security Administration

Filing 35

ORDER: The Court ADOPTS as modified Magistrate Judge Sullivan's Findings and Recommendation [31 ] and, accordingly, REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. 405(g) for furth er administrative proceedings related to evaluation of Dr. Blanchard's notes written in support of Plaintiff's applications for food stamps between January 2002 and September 2007. Signed on 07/02/2012 by Judge Anna J. Brown. See attached 8 page Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CLAUDIA M. JOHNSTON,
Plaintiff,

2:l0-CV-01498-SU
ORDER

v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

BROWN, Judge.
Magistrate Judge Patricia Sullivan issued Findings and
Recommendation (#31) on June 23, 2012, in which she recommends
the Court affirm the Commissioner's decision denying Plaintiff's
application for disability insurance benefits (DIB); denying
Plaintiff's application for supplemental security income (SSI)

1 - ORDER

before June 1, 2009; and granting Plaintiff's application for SSI
after June 1, 2009.

Plaintiff filed timely Objections to the

Findings and Recommendation.
pursuant to 28 U.S.C.

§

The matter is now before this Court

636(b) (1) and Federal Rule of Civil

Procedure 72(b).

I.

Portion of the Findings and Recommendation to which
Plaintiff does not object.
Plaintiff does not object to the portion of the Finding and

Recommendation in which the Magistrate Judge affirmed the ALJ's
finding that Plaintiff has "underlying medical conditions that
could reasonably result in the symptoms she alleges if she failed
to follow her medical regimen or attempted to exceed her residual
functional capacity" but that Plaintiff's "allegations as to the
existence of her symptoms prior to June 2009 are only partially
supported by the medical record."

Tr. 18.

When a party does not object to portions of a Magistrate
Judge's Findings and Recommendation, this Court is relieved of
its obligation to review the record de novo as to those portions
of the Findings and Recommendation.
Tapia,

United States v.

328 F.3d 1114, 1121 (9 th Cir. 2003) (en bane).

United States v.

Bernhardt,

ReynaSee also

840 F.2d 1441, 1444 (9 th Cir. 1988).

Having reviewed the legal principles de novo as to those portions
of the Findings and Recommendation to which Plaintiff does not
object, the Court does not find any error.

2 - ORDER

II.

Portion of the Findings and Recommendation to which
Plaintiff objects.
Plaintiff objects to the portion of the Findings and

Recommendation in which the Magistrate Judge found the ALJ did
not err when he did not credit the opinion of Shawn H. Blanchard,
M.D., treating physician.

Specifically, Plaintiff contends the

Magistrate Judge incorrectly concluded the ALJ did not err when
he found Dr. Blanchard's May 17, 2010, letter to the Appeals
Council did not establish Plaintiff was disabled prior to June
2009.

Plaintiff also contends the Magistrate Judge incorrectly

concluded the ALJ did not err when he failed to address
Dr. Blanchard's "one-sentence" notes written in support of
Plaintiff's applications for food stamps between January 2002 and
September 2007.
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 Dawson v. Marshall,

561

F.3d 930, 932 (9 th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9 th Cir. 2003) (en bane).

A.

May 17, 2010, Letter.
Dr. Blanchard wrote a letter on May 17, 2010, which

Plaintiff's counsel submitted to the Appeals Council on June 10,

3 - ORDER

2010."

In that letter, Dr. Blanchard noted he has treated

Plaintiff for approximately ten years and that Plaintiff suffers
from "chronic pain due to severe fibromyalgia" as well as
consequent deconditioning.

Tr. 6. 2

Dr. Blanchard opined

Plaintiff "would be limited to no more than a sit-down job, and
even then no more than part time.
her hands occasionally

She would only be able to use

[and] would not be able to

concentrate more than one hour at a time, even on simple tasks."
Tr. 6.
The Magistrate Judge noted Dr. Blanchard did not make
any statement in the May 2010 letter that Plaintiff's limitations
"applied prior to June 1, 2009,
[Plaintiff] disabled."

[the] date the ALJ found

Findings and Recommendation at 13.

The

Magistrate Judge, therefore, found Dr. Blanchard's May 2010
letter does not contradict the ALJ's finding that Plaintiff was
not disabled until June 1, 2009.
In her Objections Plaintiff does not point to any
evidence that demonstrates Dr. Blanchard's May 2010 opinion
related to Plaintiff's limitations prior to June 1, 2009.

This

Court has carefully considered Plaintiff's Objections and

1 Although Dr.
Blanchard's letter was not before the ALJ,
Plaintiff does not object to the Magistrate Judge's conclusion
that Dr. Blanchard's letter was properly included in the record
before the Court.

2 Citations to the official transcript of record filed by
the Commissioner on April 19, 2011, are referred to as "Tr."

4 - ORDER

concludes they do not provide a basis to modify the Findings and
Recommendation as to Dr. Blanchard's May 2010 letter.

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 as to the May 2010 letter.

B.

Dr. Blanchard's notes in support of Plaintiff's
applications for food stamps.
The record contains a number of short notes written by

Dr. Blanchard in support of Plaintiff's applications for food
stamps between January 2002 and September 2007.

The Magistrate

Judge concluded the ALJ did not err when he failed to address the
notes because "Dr. Blanchard's notes relating to [Plaintiff's)
food stamp applications are cursory, do not explain his
conclusion, and do not cite work-related limitations establishing
disability under the Commissioner's regulations."
Recommendation at 12.

Findings and

As Plaintiff points out in her Objections,

however, the ALJ did indicate he considered Dr. Blanchard's notes
in his opinion or present reasons for rejecting those notes.
Court

~cannot

The

affirm the decision of an agency on a ground that

the agency did not invoke in making its decision.

n

Stout v.

Comm'r, 454 F.3d 1050,1054 (9 th Cir. 2006) (citation and
quotation omitted) .
Accordingly, the Court declines to adopt that portion
of the Findings and Recommendation in which the Magistrate Judge
concluded the ALJ did not err when he failed to address
5 - ORDER

Dr. Blanchard's notes written in support of Plaintiff's
applications for food stamps from January 2002 through September
2007.
III. Remand.
Generally the decision whether to remand for further
proceedings or for immediate payment of benefits is within the
discretion of the Court.
(9 th Cir. 2011).

Strauss v. Comm'r,

635 F.3d 1135, 1137

The Ninth Circuit, however, has established a

limited exception to this general rule.

Id. at 1138.

Under the

limited exception, the Court must grant an immediate award of
benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.

Harman v. Apfel,

211 F.3d 1172, 1178 n.2 (9 th Cir. 2000).
The Court has determined the ALJ erred when he failed to
address the notes of Dr. Blanchard written in support of
Plaintiff's applications for food stamps from January 2002
through September 2007.

As noted, however,

Dr. Blanchard's notes

are short and do not cite work-related limitations.
6 - ORDER

Accordingly,

the Court concludes the administrative record is not sufficiently
clear for the Court to determine whether Plaintiff is entitled to
immediate benefits based on Dr. Blanchard's notes.

In the

exercise of its discretion, the Court, therefore, concludes the
limited exception does not apply here, and this matter should be
remanded for further proceedings.
F.3d 968

(9~

See Schneider v. Comm'r, 223

Cir. 2000).

Accordingly, the Court remands this matter for further
administrative proceedings related to evaluation of
Dr. Blanchard's notes written in support of Plaintiff's
applications for food stamps between January 2002 and September
2007.

CONCLUSION
The Court ADOPTS as modified Magistrate Judge Sullivan's
Findings and Recommendation (#31) and, accordingly, REVERSES the
decision of the Commissioner and REMANDS this matter pursuant to
sentence four of 42 U.S.C.

§

405(g) for further administrative

proceedings related to evaluation of Dr. Blanchard's notes
written in support of Plaintiff's applications for food stamps

7 - ORDER

between January 2002 and September 2007.
IT IS SO ORDERED.
DATED this

~day of ~,

2012.

United states District Judge

8 - ORDER