United States District Court, D. Nevada
ROSA G. VANDIVER, Plaintiff,
NANCY A. BERRYHILL, Defendant.
M. Navarro, Chief Judge.
before the Court for consideration is a Motion to Remand,
(ECF No. 18), filed by Plaintiff Rosa G. Vandiver
(“Plaintiff”), and the Cross-Motion to Affirm,
(ECF No. 23), filed by Defendant Nancy A.
Berryhill (“Defendant” or “the
Commissioner”). These motions were referred to the
Honorable Nancy J. Koppe, United States Magistrate Judge, for
a report of findings and recommendations pursuant to 28
U.S.C. §§ 636(b)(1)(B) and (C).
27, 2016, Judge Koppe entered the Report and Recommendation
(“R. & R.”), (ECF No. 29), recommending
Plaintiff's Motion to Remand be denied and the
Commissioner's Cross-Motion to Affirm be granted.
Plaintiff filed her Objection, (ECF No. 30), to the Report
and Recommendation, on July 11, 2016. The Commissioner filed
a Response, (ECF No. 31), to the Objection on July 28, 2016.
brings this action against Defendant in her capacity as the
Commissioner of the Social Security Administration, pursuant
the 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 under Title II of the Social Security
Act, 42 U.S.C. §§ 401-403. (Id. ¶ 3).
applied for disability insurance benefits on August 10, 2011,
which were denied initially and upon reconsideration.
(Id. ¶ 6-7); (Admin. R. (“A.R.”) at
233, ECF No. 17-1). Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), who ultimately
issued an unfavorable decision denying Plaintiff's
benefits claim. (Compl. ¶ 7). Plaintiff timely requested
Appeals Council review of the ALJ's decision, which was
denied on March 16, 2015. (Id. ¶ 8).
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).
asserts two objections to the Report and Recommendation,
which largely reassert her same arguments before Judge Koppe.
First, relying on Stubbs-Danielson v. Astrue, 539
F.3d 1169 (9th Cir. 2008), Plaintiff argues that “[a]
limitation to simple work equate [sic] to a limitation of no
more than unskilled work.” (Obj. 5:9, ECF No. 30). As
Judge Koppe recognized, however, “the Ninth Circuit
made that finding based on the medical record in that case
and did not hold that such a finding was required in every
case.” (R. & R. 7:25-26, ECF No. 29). Indeed,
Plaintiff “agrees with the Court that such a finding is
not required in every case.” (Obj. 4:15-16). The
medical record in this case shows that Plaintiff
“demonstrated good attention and concentration
capabilities when in a more structured and less stressful
situation, ” supporting the ALJ's finding that
Plaintiff was limited to no more than moderately complex
tasks of an SVP of 4 or less. (A.R. at 46-47).
Plaintiff asserts that the ALJ erred by failing to account
for Plaintiffs limitations in social functioning in
determining her residual functioning capacity
(“RFC”). (See Obj. 6:4). After reviewing
the ALJ's findings, the Court agrees with Judge Koppe
that “the ALJ discussed the record that existed with
respect to any difficulties Plaintiff had in social
functioning in conducting the Step 2 analysis” and
properly incorporated the Step 2 analysis into the RFC
assessment. (R. & R. 29:5-17); (see also A.R. at
43-44). Further, to the extent Plaintiff argues that the ALJ
posed incomplete hypotheticals to the vocational expert,
“a step-two determination that a non-exertional
impairment is severe does not require that the ALJ seek the
assistance of a vocational expert at step five.”
Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir.
reviewed the Commissioner's objections de novo,
the Court finds no basis on which to reject Judge Koppe's
findings and recommendations. The Court therefore grants the
Commissioner's Cross-Motion to Affirm and denies
Plaintiff's Motion to Remand.
HEREBY ORDERED that the Report and Recommendation, (ECF No.
29), be ACCEPTED and ADOPTED in full, to the extent that ...