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Holman v. Saul

United States District Court, D. Nevada

January 13, 2020

OLIVIA R. HOLMAN, Plaintiffs,
v.
ANDREW SAUL, Defendants.

          ORDER

         Presently before the court is Magistrate Judge Koppe's report and recommendation (“R&R”) granting commissioner's countermotion to affirm and denying plaintiff's motion for remand. (ECF No. 25). Plaintiff Heidi M. Johnson (“plaintiff”) objected to the R&R.[1] (ECF No. 26). Defendant Andrew Saul (“the commissioner”) did not respond, and the time to do so has passed.

         Also before the court is plaintiff's motion to remand (ECF No. 18), to which the commissioner responded (ECF No. 22).

         Also before the court is the commissioner's counter motion to affirm (ECF No. 21), to which plaintiff responded (ECF No. 24).

         I. Background

         The parties do not object to the factual presentation in the R&R. Therefore, the court adopts the factual representation in the R&R and will detail factual and procedural background in the discussion section of this order as necessary to explain the court's holding.

         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. Where a party timely objects to a magistrate judge's report and recommendation, the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of a magistrate judge within fourteen (14) days from the date of service of the findings and recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a motion within fourteen (14) days after service thereof.

         III. Discussion

         Judge Koppe aptly described the five-step evaluation process ALJs use to determine whether an individual is disabled. (ECF No. 25 at 3-5); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). As Judge Koppe explained:

Before considering step four of the sequential evaluation process, the ALJ must first determine the individual's residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). The RFC is a function-by-function assessment of the individual's ability to do physical and mental work-related activities on a sustained basis despite limitations from impairments. SSR 96-8p. In making this finding, the ALJ must consider all of the symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 416.929; SSR 16-3p. To the extent that statements about the intensity, persistence, or functionally-limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. The ALJ must also consider opinion evidence in accordance with the requirements of 20 C.F.R. § 416.927.

(ECF No. 25 at 4). Here, the parties dispute the ALJ's determination of plaintiff's “residual functional capacity” (“RFC”). (See generally ECF Nos. 18; 21; 24).

         The Social Security Administration classifies jobs as “sedentary, light, medium, heavy, and very heavy.” 20 C.F.R. §§ 404.1567(b), 416.967(b). A job is considered light work “when it requires a good deal of walking or standing . . . .” Id. A sedentary job, on the other hand, “is defined as one which involves sitting, ” although walking and standing may be required occasionally. Id.

         The vocational expert indicated that plaintiff's prior work as a bus person is classified as “medium exertion, ” but that “it appears that it was actually performed at the light level . . . .” (ECF No. 16-1 at 57). When asking the vocational expert a hypothetical, the ALJ specifically mentioned that plaintiff's ability to “stand, sit, and walk a total of two hours of an eight hour day, 20 minutes maximum at one time on her feet” would “[o]bviously . . . preclude her past work because she was on her feet a lot longer than that time frame.” Id. at 65. Indeed, the ALJ ultimately concluded that “[t]he ...


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