The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the Cross-Motions for Summary Judgment filed by Plaintiff Martin Corona (Doc. # 30) and the Social Security Administration (Doc. # 32), and the Report and Recommendation of the Magistrate Judge. (Doc. # 34).
In September of 2004, Plaintiff applied for disability benefits alleging he has been disabled since he lost an eye on February 5, 2004 and became severely depressed. (Doc. # 31, AR at 14.)*fn1 On February 1, 2007, the Administrative Law Judge ("ALJ") found that Plaintiff was disabled as of May 1, 2006, but not before that date. Id. at 12. On June 11, 2007, the Appeals Council denied Plaintiff's request for review of the decision as to the period between February 5, 2004 and May 1, 2006. Id. at 4. On August 3, 2007, Plaintiff filed a Complaint for Review of Final Decision of the Commissioner pursuant to 42 U.S.C. § 405 (g). (Doc. # 1).
On December 30, 2009, Plaintiff filed a Motion for Summary Judgment. (Doc. # 30). On January 29, 2010, the Commissioner of Social Security filed a Cross-Motion for Summary Judgment. (Doc. # 32).
On April 19, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R") which recommends granting in part and denying in part Plaintiff's Motion for Summary Judgment and granting in part and denying in part Defendant's Cross Motion for Summary Judgment and remanding the case to the ALJ for further proceedings. (Doc. # 34). The R&R concludes:
The Court has found that most of the arguments presented in Plaintiff's Motion for Summary Judgment are unsupported by the record in this case. However, the Court has found that conflicts exist between the vocational expert's testimony and the evidence provided by the [Dictionary of Occupational Titles]. Additionally, the Court has found that evidence in the record shows that Plaintiff does not have depth perception and is unable to communicate in English. Therefore, he would be unable to perform the work of the occupations suggested by the vocational expert and found by the ALJ. Therefore, it is RECOMMENDED that the case be REMANDED to the ALJ so that he can discharge his duties pursuant to SSR 00-4p. Further, it is RECOMMENDED that Plaintiff's Motion for Summary Judgment be GRANTED in part and DENIED in part and Defendant's Cross-Motion for Summary Judgment be GRANTED in part and DENIED in part.
Id. at 28-29. Neither party objected to the R&R.
The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge must "make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999) (citation omitted). "Substantial evidence is more than a mere scintilla but less than a preponderance." Id. (citation omitted).
The Court has reviewed the R&R in its entirety. The Court concludes that the Magistrate Judge correctly determined that the ALJ did not err in determining that Plaintiff's limited intellectual functioning did not impair Plaintiff's ability to perform simple repetitive tasks. The Court concludes that the Magistrate Judge correctly determined that the ALJ did not err in consulting a vocational expert rather than referring to the Medical-Vocational Guidelines. The Court concludes that the Magistrate Judge correctly determined that the ALJ erred in relying on vocational expert testimony without establishing that the testimony was consistent with the Dictionary of Occupational Titles and that this failure constitutes reversible error.
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (Doc. # 34) is adopted in its entirety. Plaintiff's Motion for Summary Judgment (Doc. # 30) is GRANTED IN PART and DENIED IN PART. Defendant's Cross Motion for Summary Judgment (Doc. # 32) is GRANTED IN PART and DENIED IN PART. The Court remands in part to the Social Security ...