Buffington v. Commissioner Social Security Administration
Filing
22
Opinion and Order - Adopting Findings and Recommendation 20 . The case is reversed and remanded, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings. Signed on 3/23/12 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MICHAEL C. BUFFINGTON, JR.,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE,
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Commissioner of Social Security,
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Defendant.
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____________________________________)
No. 3:10-CV-06346-HU
OPINION AND ORDER ADOPTING
FINDINGS & RECOMMENDATION
SIMON, District Judge.
On February 27, 2012, Magistrate Judge Dennis Hubel issued Findings and
Recommendation (#20) in the above-captioned case. Judge Hubel recommended that the
Commissioner’s decision be reversed and remanded for further proceedings. On remand, the
Administrative Law Judge (ALJ) is to reconsider the opinion of the claimant’s treating physician,
Jerome Vergamini, and if the opinion is again discounted, to provide clear and convincing
reasons for doing so. The ALJ must also include the claimant’s concentration, persistence, and
pace limitations in the questions posed to the vocational expert (VE), and he or she should also
consider including limitations regarding the claimant’s absenteeism. Neither party has filed
objections to Judge Hubel’s findings and recommendation.
Under the Federal Magistrates Act, the court may “accept, reject or modify, in whole or
in part, the findings or recommendations made by the magistrate.” Federal Magistrates Act, 28
U.S.C. § 636(b)(1). If a party files objections to a magistrate’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).
If, however, no objections are filed, the Magistrates Act does not prescribe any standard of
review. In such cases, “[t]here is no indication that Congress, in enacting [the Magistrates Act],
intended to require a district judge to review a magistrate’s report[.]” Thomas v. Arn, 474 U.S.
140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en
banc), cert. denied, 540 U.S. 900 (2003) (the court must review de novo the magistrate’s findings
and recommendations if objection is made, “but not otherwise”).
Although in the absence of objections no review is required, the Magistrates 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 Federal Rule of
Civil Procedure 72(b) recommend that “[w]hen no timely objection is filed,” the court review the
magistrate’s findings and recommendations for “clear error on the face of the record.”
No party having made objections, this court follows the recommendation of the Advisory
Committee and reviews Magistrate Judge Hubel’s findings and recommendation for clear error
on the face of the record. No such error is apparent. Therefore the court orders that Judge
Hubel’s Findings and Recommendation (#20) is ADOPTED. The case is REVERSED and
REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings
consistent with the findings and recommendation and this opinion.
OPINION & ORDER – Page 2
Dated this 23rd day of March, 2012.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
OPINION & ORDER – Page 3
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