United States District Court, D. Nevada
OLIVIA R. HOLMAN, Plaintiffs,
ANDREW SAUL, Defendants.
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. (ECF No. 26). Defendant Andrew Saul
(“the commissioner”) did not respond, and the
time to do so has passed.
before the court is plaintiff's motion to remand (ECF No.
18), to which the commissioner responded (ECF No. 22).
before the court is the commissioner's counter motion to
affirm (ECF No. 21), to which plaintiff responded (ECF No.
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.
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
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.
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.
(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).
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.
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