IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

LINDA LOUISE COLTON, 

Plaintiff, 

vs. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

AIKEN, District Judge: 

Case No. 3: 15-cv-O 1962-CL 

ORDER 

Magistrate Judge Clarke filed his Findings and Recommendation ("F&R") on 5/19/2017 

(doc. 26) recommending awarding plaintiff cost and fees in the amount of$6,901.45. The matter 

is now before me. See 28 U.S.C. § 636(b)(l)(B) and Fed. R. Civ. P. 72(b). When either party 

objects to any portion of a magistrate judge's F&R, the district court must make a de novo 

dete1mination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(l); 

lvfcDonnell Douglas Corp. v. Commodore Business i\!fachines, Inc., 656 F.2d 1309, 1313 (9th 

Cir. 1981), cert denied, 455 U.S. 920 (1982). 

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Plaintiff filed timely objections to the F&R (doc. 28), and the Commissioner has filed a 

response (doc. 29). Thus, I review the F&R de nova. 

This dispute arises out of plaintiffs application for cost and fees in the amount of 

$7,672.17 pursuant to the Equal Access to Justice Act ("EAJA") (doc. 22). The Commissioner 

does not dispute that plaintiff is entitled to EAJA fees, but she rather objects to the full amount of 

fees requested in the application. At issue are 3.8 hours that plaintiffs counsel spent drafting 

plaintiffs objections to Magistrates Judge Clarke's first F&R (doc. 16), recommending the case 

be reversed and remanded for fmiher proceedings. In that F&R Magistrate Judge Clarke found 

merit in some of plaintiffs assignments of error, and he rightly rejected others. Plaintiff filed 

objections to the F&R regarding the recommendations which were unfavorable to her. I adopted 

the F&R in its entirety. (doc. 20) 

Now plaintiff objects to Magistrate Judge Clark's F&R on her application for EAJA fees 

which recommended granting the application for the amount of $6,094.45, rather than the 

$7,672.17 requested. I find no e11'or contained in Magistrate Judge Clarke's present F&R, and 

adopt the thorough analysis contained in his recommendation. 

In her objections, Plaintiff contends that despite the favorable recommendation in the 

original F&R and lack of objection from the Commissioner, in my review of the F&R, I could 

have chosen to not adopt the F&R and affirm the decision of the commissioner. Moreover, 

plaintiff argues that, had I done so, she would have been barred from appealing that ruling to the 

Ninth Circuit Comi of Appeals. Thus she argues, she had to file objections or waive her right to 

appeal an unfavorable ruling from this Court. As noted in the F&R, this concern is overstated. 

The failure to object to a conclusion of law does not constitute a waiver of appeal. Gonzalez v. 

Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). The question of whether an administrative 

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agency's find of fact is supported by substantial evidence is not a factual issue; it is a question of 

law. Id; See also, Baxter v. Sullivan, 923 F.2d 1391, 1394-95 (9th Cir. 1991); Greenhow v. 

Secretmy of Health & Human Services, 863 F. 2d 633, 635 (9th Cir. 1988), overruled on other 

grounds. 

Therefore, I adopt Magistrate Judge Clark's F&R (doc. 26) in its entirety. Plaintiffs 

application for costs and attorney fees pursuant to the EAJA (doc. 22) is granted in the amount of 

$6,901.45. 

IT IS SO ORDERED. 

Dated this i1~ay ofNovember, 2017. 

Ann Aiken 

United States District Judge 

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