IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOHN RICHARD OTT, 

Plaintiff, 

vs. 

CAROLYN COLVIN, Acting 

Commissioner of Social Security, 

Defendant. 

Kathryn Tassinari 

Brent Wells 

Harder, Wells, Baron & Panning, PC 

474 Willamette, Ste. 200 

Eugene, OR 97401 

Attorneys for Plaintiff 

Janice E. Hebert 

Assistant United States Attorney 

1000 SW Third Ave., Ste. 600 

Portland, OR 97201 

Kathryn A. Miller 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Ste. 2900 M/S 221A 

Seattle, WA 98104 

Attorneys for defendants 

Page 1 - ORDER 

No. 6:14-cv-01619-AA 

ORDER 

Case 6:14-cv-01619-TC Document 27 Filed 03/17/16 Page 1 of 4
AIKEN, Judge: 

In this Social Security disability case, Magistrate Judge Coffin filed his Findings and 

Recommendation (F&R) on January 8, 2016. The matter is now before me pursuant to 28 U.S.C. 

§ 636(b)(l)(B) and Fed. R. Civ. P. 72(b)(3). When a party objections to any portion of the 

Magistrate's F&R, the district court must make a de novo determination of that portion of the 

Magistrate's report. 28 U.S.C. § 636(b)(l)(B); McDonnell Douglas Corp. v. Commodore Bus. 

Machs., 656 F.2d 1309, 1313 (9th Cir. 1981). 

Defendant Carolyn Colvin, Acting Commissioner of Social Security, denied plaintiff John 

Ott's application for benefits. Judge Coffin recommended reversing and remanding for an 

immediate award of benefits. Defendant filed Objections to the F&R (doc. 25), and plaintiff filed 

a Response (doc. 26). In light of the broad scope of defendant's assertions of error, I have given the 

entire file of this case a de novo review. 

Defendants first argue Judge Coffin failed to provide legal analysis or identify errors in the 

ALJ' s decision, except with regard to one credibility factor. 1 This objection is focused on the form 

of the F &R rather than the substance. For example, defendant asserts Judge Coffin "merely repeated 

verbatim the various arguments raised by the parties" and used "long passages directly borrowed 

from [p ]lain tiff's brief, with no review or analysis of the issues." Def.' s Obj. F &R 3. Contrary to 

defendant's suggestion, a judge's reliance on arguments and authority raised by the parties is not 

evidence the court failed to conduct meaningful review of the issues. See In re Benny, 81F.3d91, 

1 Defendant does not specify which credibility factor she considers to be sufficiently 

rejected. The Court presumes defendant is referring to the ALJ's reliance on plaintiff's receipt of 

unemployment benefits, which defendant concedes is not a sufficient reason to discredit a 

claimant's testimony. 

Page 2 - ORDER 

Case 6:14-cv-01619-TC Document 27 Filed 03/17/16 Page 2 of 4
93-94 (9th Cir. 1996) (amici's "legal representation won the case" because "[t]he final decision ... 

was, verbatim, the amicus brief'). 

Moreover, after careful review, I conclude the reasoning and conclusions of the F&R are 

adequately explained and substantively correct. For example, Judge Coffin spent eight paragraphs 

discussing plaintiffs subjective symptom testimony, statements about his activities of daily living, 

and failed attempts to work after the disability onset date. Those paragraphs are clearly structured 

to show there is no inconsistency between plaintiffs symptom testimony and his activity level. 

Similarly, the F&R addresses the ALJ's rejection of treating physician Dr. Ferguson's opinion 

regarding plaintiffs limitations as inconsistent with two of Dr. Ferguson's own treatment records. 

As the F &R explains, one of the allegedly inconsistent records predates the disability onset date and 

Dr. Ferguson corrected the other allegedly inconsistent record as erroneous. There is nothing 

ambiguous or unexplained about Judge Coffin's analysis. This Court will not remand for 

"clarification" when there is only one fair reading of the F&R. 

Second, defendant asserts remand is necessary because Judge Coffin did not conduct a 

harmless error review. Although it is true the F&R does not expressly address the harmless error 

standard, the F &R explains why Dr. Ferguson's opinion, if credited as true, would compel a finding 

of disability. A review of the record demonstrates the same is true of plaintiffs symptom testimony. 

See AR 56-57 (vocational expert at plaintiffs hearing testifying absenteeism at levels consistent with 

plaintiffs testimony would preclude employment). Accordingly, any error in failing to explicitly 

address the harmless error standard was itself harmless. Cf Sanders v. Woociford, 373 F.3d 1054, 

1060 (9th Cir. 2004) ("[W]e apply a second level of harmless-error review in order to determine 

whether the state court's failure to conduct the constitutionally mandated review was itself 

Page 3 - ORDER 

Case 6:14-cv-01619-TC Document 27 Filed 03/17/16 Page 3 of 4
harmless."), rev 'don other grounds, Brown v. Sanders, 546 U.S. 212 (2006). 

Third, defendant challenges Judge Coffin's recommendation to remand for an immediate 

calculation of benefits. Judge Coffin set out the appropriate standards regarding whether to remand 

for further proceedings or remand for an award of benefits, found further proceedings would serve 

no useful purpose in this case, and determined a finding of disability would be compelled if the 

improperly discredited evidence were credited as true. His recommendation regarding remedy is 

consistent with Ninth Circuit precedent. Contrary to defendant's assertion, there is no evidence 

Judge Coffin decided to remand for payment of benefits as a way to "punish" the agency. Def.' s 

Obj. F&R6. 

I ADOPT Judge Coffin's F&R (doc. 23). The Commissioner's decision is REVERSED and 

REMANDED for an immediate calculation of benefits. 

IT IS SO ORDERED. 

. ;-;r;fLA- Dated this 4 day of March 2016. 

Ann Aiken 

United States District Judge 

Page 4 - ORDER 

Case 6:14-cv-01619-TC Document 27 Filed 03/17/16 Page 4 of 4