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Ellis v. Berryhill

United States District Court, D. Nevada

April 5, 2017

SHAUNATE ELLIS, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER

          Gloria M. Navarro, United States District Judge

         Pending before the Court for consideration is a Motion to Remand, (ECF No. 16), filed by Plaintiff Shaunate Ellis (“Plaintiff”) and the Cross-Motion to Affirm, (ECF No. 21), filed by Defendant Nancy A. Berryhill[1] (“Defendant”). These motions were referred to the Honorable Carl W. Hoffman, United States Magistrate Judge, for a report of findings and recommendations pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C).

         On March 7, 2016, Judge Hoffman entered the Report and Recommendation (“R&R”), (ECF No. 28), recommending Plaintiff's Motion to Remand be denied and Defendant's Cross- Motion to Affirm be granted. Plaintiff filed her Objection to the Report and Recommendation, (ECF No. 29), on March 10, 2016. Defendant filed her Response to the Objection, (ECF No. 30), on March 28, 2017.

         I. BACKGROUND

         Plaintiff brings this action against Defendant in her capacity as the Commissioner of the Social Security Administration, pursuant to § 205(g) of the amended Social Security Act, 42 U.S.C. § 405(g). (Compl., ECF No. 3). Plaintiff seeks judicial review of a final decision of the Commissioner of the Social Security Administration denying her claims for Social Security Disability benefits benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. (Id. ¶ 6)

         Plaintiff applied for disability insurance benefits on February 25, 2011, which were denied initially and upon reconsideration. (Id. ¶¶ 5-8); (Admin. R. (“AR”) at 146-52, ECF No. 15-1). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), who ultimately issued an unfavorable decision denying Plaintiff's benefits claim. (Id. ¶ 7). Plaintiff timely requested Appeals Council review of the ALJ's decision, which was denied on October 7, 2014. (Id.).

         This action was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and District of Nevada Local Rule IB 1-4. In his Report and Recommendation, Judge Hoffman recommended that this Court enter an order granting the Motion to Affirm, (ECF No. 21), and denying the Motion for Remand, (ECF No. 16). (R&R, ECF No. 28).

         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); D. Nev. Local R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local R. IB 3-2(b).

         III. DISCUSSION

         In the R&R, Judge Hoffman found that the ALJ's finding that Plaintiff has the mental capacity to perform work as a bench assembler was supported by substantial evidence. (R&R 7:10-25, ECF No. 28). Specifically, Judge Hoffman found “no conflict between the ALJ's determination that Plaintiff could complete only one- and two-step tasks, and the vocational expert's [“VE's”] testimony that Plaintiff could work as a bench assembler, which the [Dictionary of Occupational Titles (“DOT”)] categorizes as reasoning level 2.” (Id. 8:7-10).

         On this point, Judge Hoffman looked to the VE's testimony that a bench assembly position involves “one and two step” tasks; the DOT designation of the job as “unskilled”; and Plaintiff's “exaggeration of her symptoms.” (Id. 7:14-25). Accordingly, Judge Hoffman concluded that the ALJ did not err in determining that “Plaintiff can perform a job widely available in the national economy that accounts for her limitations.” (Id. 8:11-16).

         Plaintiff's objection to the R&R is limited to “whether [she] retains the mental capacity to perform the occupation of bench assembler in light of the ALJ's finding that she was limited to simple one to two step tasks.” (Obj. 4:12-14, ECF No. 29). In particular, Plaintiff relies on the Ninth Circuit decision in Rounds v. Comm'r SSA, 807 F.3d 996 (9th Cir. 2015), and asserts that the ALJ erred by failing to recognize and reconcile a conflict between the DOT and the VE's testimony. (Id. 6:3-8). In Rounds, the Ninth Circuit discussed the six “Reasoning Levels that range from Level One (simplest) to Level Six (most complex).” Rounds, 807 F.3d. At 1002. Levels One and Two state:

Level 1: Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from ...

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