Thoman v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 19, 2024
• Docket: 4:23-cv-00413
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Raven Thoman, No. CV-23-00413-TUC-AMM

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On July 23, 2024, Magistrate Judge Eric J. Markovich issued a Report and 16 Recommendation recommending that this Court deny Plaintiff’s appeal and affirm the 17 Commissioner’s denial of Social Security benefits. (Doc. 21.) Plaintiff filed objections to 18 the R&R. (Doc. 23.) The Commissioner did not respond to the objections. For the 19 following reasons, the Court will overrule Plaintiff’s objections and affirm the R&R. 20 A district judge must “make a de novo determination of those portions” of a 21 magistrate judge’s “report or specified proposed findings or recommendations to which 22 objection is made.” 28 U.S.C. § 636(b)(1). A district judge may “accept, reject, or 23 modify, in whole or in part, the findings or recommendations” of the magistrate judge. 28 24 U.S.C. § 636(b)(1). 25 I. Procedural History 26 This case presents a sole legal issue for review by the Court: whether the 27 Administrative Law Judge (ALJ) failed to demonstrate that jobs exist in significant 28 numbers at Step Five of the disability evaluation process. (Doc. 17 at 2; doc. 19 at 1.) The 1 ALJ limited Plaintiff to light work, except that he “can perform simple, routine work, no 2 fast paced work environment, no static pace work such as assembly line, would be off 3 task less than 10% of the work day; must work in a calm environment free of sudden and 4 loud noises; requires occasional repeated directions, particularly when new tasks are 5 assigned; can occasionally reach overhead with the left upper extremity, [and] may never 6 be exposed to concentrated dust, fumes, or pulmonary irritants.” (AR 28-29.) A 7 vocational expert (VE) testified at a September 1, 2022 hearing that an individual with 8 these limitations would be able to perform the jobs of “marker,” with approximately 9 137,000 jobs available in the national economy, “cafeteria attendant,” with approximately 10 19,000 available jobs, and “office helper,” with approximately 14,000 available jobs. (AR 11 33, 79.) Plaintiff, through counsel, had an opportunity to examine the VE at the hearing. 12 (AR 79-81.) Plaintiff questioned the VE about hypothetical limitations not included in 13 the RFC and did not question the VE about the jobs she testified Plaintiff could perform. 14 (Id.) 15 Based on the VE’s testimony, the ALJ found that Plaintiff had work available in 16 significant numbers in the national economy and therefore found Plaintiff not disabled in 17 an October 18, 2022 decision. (AR 33-34.) The ALJ found the VE’s testimony consistent 18 with the information contained in the Dictionary of Occupational Titles (DOT). (Id.) 19 On November 8, 2022, Plaintiff sought to reopen his case to allow for additional 20 VE interrogatories. (AR 317-319.) In his request to reopen, Plaintiff argued that his RFC 21 contained elements that “appear to implicate” the temperaments factor found in the 1991 22 Revised Handbook for Analyzing Jobs. (AR 317.) Plaintiff argued that each of the three 23 jobs that the ALJ found Plaintiff could perform implicated a temperament factor that 24 should have excluded the job from consideration. (AR 317.) Specifically, Plaintiff argued 25 that his RFC limitations precluded jobs involving the temperament factors of “repetitive 26 and short-cycle work” and “performing effectively under stress” and required that jobs 27 include the temperament factor of “working under specific instructions.” (AR 317-18.) 28 Plaintiff then performed a job search that included or excluded these temperament factor 1 limitations in addition to the RFC limitations. (AR 318.) That search returned four job 2 titles with a total of 433 jobs available in the national economy. (Id.) Plaintiff posited that 3 the discrepancy between these results and the VE findings warranted reopening the case. 4 (AR 318-19.) The ALJ did not respond to the request to reopen. (See doc. 19 at 3.) 5 Plaintiff requested review of the ALJ’s decision by the Appeals Council (AC). 6 (AR 1-6.) In that request, Plaintiff argued that the ALJ failed to show that jobs exist in 7 significant numbers because the ALJ relied on unreliable VE testimony. (AR 324-326.) 8 The AC considered Plaintiff’s arguments and found that they did not warrant review of 9 the ALJ’s decision. (AR 1-6.) This appeal followed. 10 II. Analysis 11 Plaintiff objects to the Magistrate Judge’s conclusions that (1) the Court lacks 12 jurisdiction to review Plaintiff’s request to reopen and (2) Plaintiff’s job numbers 13 evidence is not probative. (See doc. 21 at 5-11; doc. 23.) The objections fail for the 14 following reasons. 15 A. The Court lacks jurisdiction to review the request to reopen. 16 Plaintiff broadly asserts, without citing authority or referring to any specific 17 finding or recommendation by the Magistrate Judge, that the ALJ’s failure to respond to 18 his request to reopen is a final decision reviewable by this Court. (Doc. 23 at 5.) 19 Objections must identify the specific findings in the R&R to which objection is 20 made. 28 U.S.C. § 636(b)(1) (district judge shall “make a de novo determination of those 21 . . . specified proposed findings or recommendations to which objection is made”). 22 Objections to an R&R “are not a vehicle for the losing party to relitigate its case.” 23 Hagberg v. Astrue, 2009 WL 3386595, at *1 (D. Mont. Oct. 14, 2009). The benefit of 24 magistrate judges in the federal system ceases to exist “if the district court is required to 25 review the entire matter de novo because the objecting party merely repeats the 26 arguments rejected by the magistrate.” Id. Accordingly, district courts preclude 27 objections that seek to relitigate arguments already raised to, and rejected by, the 28 Magistrate Judge. Williams v. Navarro, No. 18-CV-1581 TWR (KSC), 2022 WL 1 16758479, at *1 (S.D. Cal. Nov. 8, 2022), aff'd, No. 22-55974, 2024 WL 1875007 (9th 2 Cir. Apr. 30, 2024) (general objections do not trigger de novo review). 3 Here, Plaintiff fails to cite a basis for his objection to the Magistrate Judge’s 4 conclusion on the jurisdictional issue; furthermore, he repeats the exact arguments raised 5 to and rejected by the Magistrate Judge, but in an even more cursory and conclusory 6 form. Accordingly, Plaintiff fails to raise a sufficiently specific objection to the R&R. 7 However, because the objection concerns a jurisdictional dispute, the Court has reviewed 8 de novo the parties’ arguments and the Magistrate Judge’s findings as to this issue. (See 9 doc. 21 at 5-7; doc. 17 at 6-8; doc. 19 at 3); see also Hagberg, 2009 WL 3386595 at *1. 10 The Court agrees with the Magistrate Judge’s conclusion that the Court lacks jurisdiction 11 to review a denial of a request to reopen because such a decision “is discretionary and 12 does not constitute a final decision . . . subject to judicial review.” See Udd v. Massanari, 13 245 F.3d 1096, 1098-99 (9th Cir. 2001).1 Accordingly, the objection is overruled. 14 B. Plaintiff is not entitled to present new evidence after denial of his claim. 15 Plaintiff further objects that the Magistrate Judge erred by finding the job numbers 16 evidence not probative.2 (Doc. 23.) However, the Court sees no reason to reach the 17 question of whether the job numbers evidence was probative because the Social Security 18 regulations do not guarantee a claimant the ability to present new evidence after an ALJ 19 has issued her decision. 20 The regulations governing judicial review of Social Security decisions provide that 21 courts may “order additional evidence to be taken before the Commissioner of Social 22 Security, but only upon a showing that there is new evidence which is material and that 23 there is good cause for the failure to incorporate such evidence into the record in a prior 24 proceeding.” 42 U.S.C. § 405(g); see also 20 C.F.R. § 404.395 (ALJ may decline to 25 consider evidence that is not submitted at least 5 days before the hearing unless specific,

26 1 An exception applies where the denial of a petition to reopen is challenged on constitutional grounds. See id. Here, Plaintiff has not raised a constitutional challenge. 27 2 This is the Court’s interpretation of Plaintiff’s objection. The objection is arguably too general and non-specific to trigger de novo review, and “guessing at issues is clearly 28 undesirable.” See Sullivan v. Schriro, No. CV-04-1517-PHX-DGC, 2006 WL 1516005, at *1 (D. Ariz. May 30, 2006). 1 delineated circumstances apply); 20 C.F.R. § 404.944 (ALJ may reopen a hearing to 2 receive new and material evidence before mailing a notice of decision); Brandy Lynn W. 3 v. O'Malley, 2024 WL 3164887, at *4 (D. Idaho June 10, 2024), report and 4 recommendation adopted sub nom. BRANDY LYNN W., Plaintiff, v. MARTIN J. 5 O'MALLEY, Comm'r of Soc. Sec. Admin., Defendant., 2024 WL 3162894 (D. Idaho June 6 25, 2024) (claimant has right to present evidence before claim is denied). 7 Plaintiff has neither argued nor shown that good cause exists for the failure to 8 present the job numbers evidence to the ALJ before her decision was issued. Plaintiff was 9 given an opportunity to question the VE at the hearing and did so. Further, approximately 10 six weeks passed between the hearing and the issuance of the ALJ’s decision, during 11 which time Plaintiff could have submitted the job numbers evidence. However, Plaintiff 12 did not submit the evidence until after receiving the unfavorable decision.3 Not only was 13 the ALJ not required to reopen the case after issuing her decision, she also was not 14 required to consider evidence that was presented after the hearing, absent specific, 15 delineated circumstances that are not present here. See 20 C.F.R. § 404.935(b). Finally, 16 there is no indication in the record of a due process or other constitutional violation that 17 would justify remand. See Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001). 18 Accordingly, the Court lacks a legal basis to order remand for consideration of Plaintiff’s 19 job numbers evidence and therefore need not reach the question of whether the evidence 20 is probative. For these reasons, Plaintiff’s objection is overruled. 21 III. Conclusion 22 The Court has reviewed de novo the objected-to portions of Magistrate Judge 23 Markovich’s Report and Recommendation and has reviewed the unobjected portions for 24 clear error. See Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition; see also 25 Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only 26 partial objection is made, the district court judge reviews those unobjected portions for

27 3 Plaintiff contends that he submitted the evidence before the ALJ’s decision became final and while it was still subject to revision by the ALJ under 20 C.F.R. § 416.1487. 28 (Doc. 23 at 2-3); see also 20 C.F.R. § 416.1455. This does not change the Court’s analysis. □□ clear error.”). The Court finds no error in Magistrate Judge Markovich’s Report and 2 || Recommendation. 3 Accordingly, 4 IT IS ORDERED that Plaintiff's Objections (doc. 23) are overruled. 5 IT IS ORDERED that the Report and Recommendation (doc. 21) is accepted 6|| and adopted in full, and the decision of the Commissioner is affirmed. 7 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 8 || accordingly and close this case. 9 Dated this 19th day of September, 2024. 10 iM Diriyp te Yn woot 12 Honorable Angela M. Martinez 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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