IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLIAM JETTE, 3:13-CV-00719-AC

Plaintiff, ORDER

v.

CAROLYN W. COLVIN, Acting 

Commissioner, Social Security 

Administration,

Defendant.

BROWN, Judge.

Magistrate Judge John V. Acosta issued Findings and

Recommendation (F&R) (#29) on September 8, 2014, in which he

recommends this Court reverse and remand for further

administrative proceedings the Commissioner's decision awarding

Plaintiff supplemental security income benefits and disability

insurance benefits during a closed period of disability between

May 15, 2008 and May 31, 2011. Defendant filed timely

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Case 3:13-cv-00719-AC Document 38 Filed 10/29/14 Page 1 of 4
Objections (#34) to the F&R. The matter is now before this Court

pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil

Procedure 72(b).

When any party objects to any portion of the Magistrate

Judge's F&R, 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

(9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114,

1121 (9th Cir. 2003)(en banc). 

The Magistrate Judge recommends this Court reverse the

Commissioner’s decision to grant benefits to Plaintiff during a

closed period between May 15, 2008 and May 31, 2011 and remand

the case for additional administrative proceedings on the ground

that the Administrative Law Judge (ALJ) failed to consider

Plaintiff’s eligibility for a trial work-period after the closed

period. “The trial work period is a period during which [a

Social Security claimant] may test [his] ability to work and

still be considered disabled.” 20 C.F.R. § 404.1592(a). During

this period, which may be as many as nine nonconsecutive months

in a 60-month period, any services the claimant performs do not

affect his claim to benefits. Id.

Defendant objects to the Magistrate Judge’s recommendation

to remand for further proceedings on the ground that the ALJ, in

effect, found there was medical evidence that showed Plaintiff’s

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Case 3:13-cv-00719-AC Document 38 Filed 10/29/14 Page 2 of 4
impairments had improved as of June 1, 2011 and thus Plaintiff

was not entitled to benefits regardless of the trial work-period. 

Defendant argues the ALJ’s discussion of Plaintiff’s treating

physician’s treatment notes, which indicate Plaintiff had shown

some improvement, was sufficient to establish that Plaintiff was

no longer disabled. 

To support a finding that Plaintiff’s impairments had

medically improved, the ALJ must cite to medical or other

evidence. See 20 C.F.R. § 404.1592(e)(3). See also Tumminaro v.

Astrue, 671 F.3d 629, 634 (7th Cir. 2011). As noted in the F&R,

although the ALJ discussed the treatment notes of Plaintiff’s

treating physician, the only evidence the ALJ cited to support a

finding that Plaintiff had medically improved was the fact that

Plaintiff was employed after the closed period. Thus, the ALJ

erred by failing to determine whether Plaintiff is entitled to a

trial work-period, whether Plaintiff’s employment after the

closed period constituted a trial work-period, and whether

Plaintiff remained disabled after the trial work-period ended.

This Court has carefully considered Defendant’s remaining

Objections to the Magistrate Judge’s F&R and concludes

Defendant’s Objections do not provide a basis to modify the F&R. 

This Court has also reviewed the pertinent portions of the record

de novo and does not find any error in the Magistrate Judge’s

F&R. 

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CONCLUSION 

The Court ADOPTS Magistrate Judge Acosta's Findings and

Recommendation (#29). Accordingly, the Court 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 as set out in the Magistrate Judge’s Findings and

Recommendation.

IT IS SO ORDERED.

DATED this 29th day of October, 2014.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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