Summary
finding that ALJ erred when VE testified that claimant's past work was "hybrid" job but ALJ analyzed only whether he could perform one component of that hybrid and thus incorrectly found him not disabled
Summary of this case from Albritten v. BerryhillOpinion
Case No. 3:14-cv-00202-MMD-VPC
05-11-2015
MARK LINGENFELTER, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE
Before the Court is Magistrate Judge Valerie P. Cooke's Report and Recommendation ("R&R") (dkt. no. 17), regarding Plaintiff Mark Lingenfelter's motion for reversal or remand (dkt. no. 18) and Defendant Carolyn Colvin's cross-motion to affirm and opposition (dkt. nos. 13, 14), and plaintiff's opposition and reply (dkt. nos. 15, 16). Judge Cooke entered the R&R on February 2, 2015. The parties had until February 19, 2015, to file any objections. No objections were filed.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).
Nevertheless, this Court finds it appropriate to engage in a de novo review in order to determine whether to adopt the R&R. The R&R finds substantial evidence in the record does not support the ALJ's determination of nondisability. The R&R also finds that the ALJ erred with respect to her evaluation of plaintiff's past relevant work, her conclusion that plaintiff has transferable customer service skills, and her rejection of Cestkowski's postural limitations findings. Because the errors are not harmless, and because further proceedings can rectify these errors, the R&R concludes that remand is appropriate. Upon review of the R&R and the records in this case, the Court finds good cause to adopt the R&R in full.
It is hereby ordered that the R&R (dkt. no. 17) is accepted and adopted. Plaintiff's motion to remand (dkt. no. 12) is granted and defendant's cross-motion to affirm (dkt. no. 13) is denied.
It is further ordered that the case is remanded to the ALJ for further administrative proceedings.
DATED THIS 11th day of May 2015.
/s/_________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE