United States District Court, D. Nevada
M. Navarro, United States District Judge
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 (“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).
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.
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)
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.).
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).
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).
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.”
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).
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 ...