The opinion of the court was delivered by: Hayes, Judge
The matter before the court is the review of the Report and Recommendation ("R&R") (Doc. # 17) issued by the United States Magistrate, recommending that Plaintiff's Motion for Motion for Summary Judgment (Doc. # 12) be granted and Defendant's Cross-Motion for Summary Judgment (Doc. # 15) be denied.
Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on January 22 and August 24, 2004, alleging she was disabled since July 7, 2003. (Administrative Record, Doc. # 7 ("AR"), 274-77). The Social Security Administration denied Plaintiff's applications initially and upon reconsideration. (AR 163-64).
On December 27, 2004, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 19). On February 21 and 26, 2007, Plaintiff appeared with counsel and testified before the ALJ. (Tr. 117-162). Also appearing and testifying were William Temple, M.D., an impartial medical expert (AR 120-26); Sidney Bolter, M.D., a second impartial medical expert (AR 126-29); Mark Remas, an impartial vocational expert (AR 130-31); and Connie Guillory, a second impartial vocational expert (AR 148-62).
On May 2, 2007, the ALJ denied Plaintiff's application for DIB and SSI in a written decision. (AR 19-31).
On June 29, 2007, Plaintiff filed a request for review of the ALJ's decision. (AR 13-15). On September 12, 2008, the Appeals Council denied Plaintiff's request for review rendering the decision of the ALJ final. (AR 4-6).
On November 14, 2008, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. # 1). On July 29, 2010, after the parties filed cross-motions for summary judgment, the Magistrate Judge issued a Report and Recommendation recommending that the Court grant Plaintiff's Motion for Summary Judgment and deny Defendant's Motion for Summary Judgment. (Doc. # 17).
On August 19, 2010, Defendant filed objections to the Report and Recommendation. (Doc. # 22). On September 7, 2010, Plaintiff filed a reply to Defendant's objections. (Doc. # 19).
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 R&R correctly concludes that it was error for the ALJ to find that Plaintiff could return to her past relevant work. (Doc. # 17). Defendant does not object to this recommendation but contends that the Commissioner's final decision should be affirmed and judgment should be entered for the Commissioner. (Doc. # 18 at 3). Defendant asserts, "[a]lthough the ALJ incorrectly stated that Plaintiff could return to her past relevant work, the vocational expert's testimony alternatively showed that Plaintiff could perform other work in significant numbers." Id. Defendant contends that the ALJ's error was harmless ...