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Vitale v. Social Security Administration

United States District Court, D. Nevada

June 17, 2014

SALVATOR H. VITALE IV, Plaintiff(s),


JAMES C. MAHAN, District Judge.

Presently before the court is the report and recommendation of Magistrate Judge Foley. (Doc. # 27). The magistrate recommends that plaintiff Salvatore H. Vitale's ("plaintiff") motion for remand (doc. # 19) to the Social Security Administration ("SSA") be granted and that the commissioner of social security's ("commissioner") cross-motion to affirm the SSA's decision (doc. # 20) be denied. The commissioner filed objections (doc. # 30) to which plaintiff responded (doc. # 34).

I. Background

A. Facts

In August and November 2009, plaintiff filed applications for a period of disability, disability benefits, and supplemental social security income, alleging he became disabled beginning December 18, 2008. On July 8, 2011, the administrative law judge ("ALJ") overseeing the case found that plaintiff was not disabled as defined by the Social Security Act. That decision became final when the appeals council denied plaintiff's request for review on September 17, 2012. On November 20, 2012, plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

B. Report & Recommendation and Objections

Plaintiff argued that the ALJ failed to present a proper hypothetical question to the vocational expert ("VE") that, on the record, included all of the limitations or assumptions that the VE was asked to consider in her testimony as to whether plaintiff was capable of performing his past relevant work. In support, plaintiff cited to the SSA's "Hearings, Appeals, and Litigation Law Manual" ("HALLEX") section 1-2-555 which states: "If certain VE testimony is based on an assumption, the VE or ALJ must clearly describe the assumption on the record." (Doc. # 19). Plaintiff argued that the ALJ did not describe on the record the four moderate mental health limits that applied to him. Instead, the ALJ asked the VE only to refer to and review certain hearing exhibits. Thus, plaintiff argued, the ALJ's hypothetical question did not satisfy HALLEX and the ALJ could not rely on the VE's testimony.

Noting that HALLEX is not binding on the court, Magistrate Judge Foley found the relevant section was consistent with Ninth Circuit case law. Under Ninth Circuit case law, "hypothetical questions asked of vocational experts must set out all of the claimant's impairments.'" Gamer v. Sec'y of Health and Human Serv., 815 F.2d 1275, 1279 (9th Cir. 1987); see also Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (same); Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (same). The magistrate found that the ALJ's hypothetical question, which referred the VE to certain exhibits and requested that she review them, did not satisfy the clear requirements set out by the Ninth Circuit. Thus, the ALJ's conclusion, ruling that plaintiff was not disabled, improperly relied on invalid VE testimony. The magistrate found it speculative to conclude that the VE recognized the same limitations as the ALJ and incorporated those limitations into her answer when these limitations were not referred to in the question. After a thorough analysis, the magistrate concluded that remand was appropriate because VE testimony based on a properly posed hypothetical question may still establish that plaintiff is able to perform other work available in the national economy. (Doc. # 27).

Accordingly, the magistrate recommends that the matter be remanded to the SSA for a further hearing to obtain VE testimony regarding plaintiff's ability to work that is based on a proper hypothetical question which clearly sets forth all of the plaintiff's physical or mental impairments or limitations. (Doc. # 27).

The commissioner makes two objections to the magistrate's report: (1) that the VE's testimony is not defective merely because the assumptions were written as opposed to oral; and (2) that the magistrate failed to consider that the ALJ relied only on the vocational testimony to support the conclusion that plaintiff could perform his past work as a sandwich maker as generally performed. (Doc. # 30). The court will address each objection in turn.

II. Legal Standard

A party may file specific written objections to the findings and recommendations of a United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); LR IB 3-2. Upon the filing of such objections, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); LR IB 3-2(b). The district court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Id.

However, the district court need not conduct a hearing to satisfy the statutory requirement that the district court make a "de novo determination." United States v. Raddatz, 447 U.S. 667, 674 (1980) (observing that there is "nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required determination'").

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 ...

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