(SS)(PS) Lowinger v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID LEE LOWINGER, No. 2:22–cv–00963 KJM CKD 12 Plaintiff, ORDER 13 v. 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 Plaintiff, proceeding without counsel and in forma pauperis, has requested review of a 18 Social Security or Supplemental Social Security Income (“SSI”) decision. (ECF No. 1.) On 19 April 28, 2023, the magistrate judge filed findings and recommendations, which contained notice 20 to the parties that any objections to the findings and recommendations were to be filed within 21 fourteen days. (ECF No. 17.) 22 The court presumes that any findings of fact are correct. See Orand v. United States, 602 23 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 24 See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the 25 magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). 26 Having reviewed the file, the court finds the findings and recommendations to be supported by 27 the record and by the proper analysis. 28 ///// 1 Accordingly, IT IS HEREBY ORDERED: 2 1. The April 28, 2023 findings and recommendations (ECF No. 17) are adopted in full. 3 2. Plaintiff’s request for hearing (ECF No. 18) is denied. 4 3. Defendant’s motion for remand (ECF No. 13) is granted. 5 4. The Clerk of Court shall enter a final judgment in favor of plaintiff, and against 6 defendant, reversing the final decision of the Commissioner and remanding for further 7 proceedings as follows: 8 On remand, the Appeals Council will direct the [ALJ] to reevaluate the denial of Plaintiff’s request for reconsideration and whether 9 Plaintiff had good cause for late filing, in accordance with 20 C.F.R. §§ 404.909(b)3 and 404.9114. If good cause is found, the ALJ will 10 consider whether the determination of Plaintiff’s January 10, 2019 application became administratively final and whether reopening is 11 warranted. As appropriate, the ALJ will conduct further administrative proceedings and will address the substance of 12 Plaintiff’s appeals. 13 5. The Clerk of Court shall close this case. 14 DATED: July 11, 2023. 15 16 17 18 19 20 21 22 23 24 25 26 27 28