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Kennedy v. Colvin

United States District Court, S.D. California

July 22, 2014

KIMBERLY KENNEDY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the review of the Report and Recommendation (ECF No. 28) issued by United States Magistrate Judge Karen S. Crawford, recommending that Plaintiff's Motion for Summary Judgment (ECF No. 16) be denied and Defendant's Cross-Motion for Summary Judgment (ECF No. 23) be granted.

BACKGROUND

On June 16, 2010, Plaintiff filed applications for a period of disability, disability insurance benefits and supplemental security income, alleging disability beginning on November 1, 2008. The applications were denied both initially and on reconsideration.

On April 9, 2012, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge ("ALJ"). The ALJ heard testimony from, inter alia, a vocational expert ("vocational expert" or "VE"). (Admin. R. at 58-70, ECF No. 10-2).

On April 17, 2012, the ALJ issued a written decision denying Plaintiff's applications for benefits and finding Plaintiff not disabled under the Social Security Act. Id. at 10-18. After the Appeals Council denied Plaintiff's request for review, the ALJ's decision became the final decision of Defendant.

On July 12, 2013, Plaintiff filed a Complaint in this Court seeking judicial review of the Defendant's decision. (ECF No. 1).

On December 16, 2013, Plaintiff filed the Motion for Summary Judgment. (ECF No. 16). Plaintiff contends that the ALJ failed to carry the Defendant's burden at step five of the sequential process for determining whether a person is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. Plaintiff contends that the ALJ erred by (1) failing to include all of Plaintiff's limitations in the ALJ's hypothetical to the vocational expert; (2) failing to apply a sedentary base grid to Plaintiff given the significant erosion to the light vocational base; and (3) relying on vocational expert testimony that is inconsistent with other jobs data in sources administratively noticed by Defendant's regulations.

On March 26, 2014, Defendant filed the Cross-Motion for Summary Judgment. (ECF No. 23). Defendant contends that the ALJ properly relied upon the vocational expert's testimony in deciding at step five that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform.

On June 26, 2014, the Magistrate Judge issued the Report and Recommendation. (ECF No. 28). The Magistrate Judge found that the ALJ sufficiently carried Defendant's burden at step five. The Magistrate Judge analyzed each of Plaintiff's contentions and recommended that this Court find that the ALJ's decision is supported by substantial evidence and is free from legal error.

On July 10, 2014, Plaintiff filed Objections to the Report and Recommendation. (ECF No. 29). Plaintiff concedes that the Report and Recommendation correctly found that any error in the ALJ's hypothetical to the vocational expert was harmless. Id. at 2. Plaintiff contends that the Report and Recommendation erred in rejecting Plaintiff's contentions regarding the erosion of the light vocational base and the vocational expert's testimony as to job numbers. Id. at 2-8.

STANDARD OF REVIEW

District Court Review of a Report and Recommendation

The duties of the district court in connection with a 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 court 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 ...


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