Kane v. Colvin
ORDER ADOPTING REPORT AND RECOMMENDATION 20 . It is further ordered that the Commissioner's final decision in this matter is REMANDED for further proceedings consistent with this Order and the Report and Recommendation adopted herein. The Clerk of Court is instructed to enter judgment accordingly and close this case. Signed by Judge Jennifer G Zipps on 3/11/15. (KAH)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Marc W. Kane,
No. CV-13-02357-TUC-JGZ (LAB)
Carolyn W. Colvin,
Pending before the Court is a Report and Recommendation issued by United
States Magistrate Judge Leslie A. Bowman recommending that this matter be remanded
to the Social Security Commission for further proceedings. (Doc. 20.) In her Report, the
Magistrate Judge found that the Administrative Law Judge (“ALJ”) improperly resolved
this case by applying the Social Security Grids at Step 5 of the disability analysis rather
than consulting a vocational expert where Plaintiff is limited to less than a full range of
light work. (Doc. 20, p. 10.) On October 30, 2014, Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security, objected to the Report asserting that the
Magistrate Judge incorrectly interpreted the ALJ’s findings as to Plaintiff’s exertional
limitations. (Doc. 21.) Plaintiff filed his Reply on November 17, 2014. (Doc. 22.)
Upon de novo review, the Court concurs with Magistrate Judge Bowman’s plain
reading of the ALJ’s findings regarding exertional limitations. Moreover, as thoroughly
explained by the Magistrate Judge, even if the Court were to adopt the Commissioner’s
urged interpretation, Plaintiff’s exertional capabilities still would not allow him to
“perform substantially all (nearly all) of the primary strength activities” required for light
work. See SSR 83-10, 1983 WL 31251, at * 5 (defining “the full range of light work [as]
require[ing] standing or walking, off and on, for a total of approximately 6 hours of an 8-
hour workday.”). In other words, whether the ALJ’s finding is interpreted as a total
standing and walking limitation of three hours out of an eight-hour workday or as a three-
hour walking limitation plus a three-hour standing limitation, Plaintiff is still limited to
less than a full range of light work because, at best, he can only perform light work jobs
where standing and walking occur in near equal amounts. (Doc. 20, p. 11.) Because
Plaintiff is limited to less than a full range of light work, the ALJ’s failure to consult a
vocational expert constituted legal error. See Tackett v. Apfel, 180 F.3d 1094, 1102 (9th
Cir. 1999) (noting that “[t]he grids should be applied only where a claimant's functional
limitations fall into a standardized pattern ‘accurately and completely’ described by the
grids” and that a vocational expert should be consulted where limitations “significantly
limit the range of work” a person can perform) (citation omitted).
Commissioner’s objection does not undermine the analysis and proper conclusion
reached by Magistrate Judge Bowman, the Commissioner’s objection is rejected, and the
Report and Recommendation is adopted.
IT IS ORDERED that the Report and Recommendation (Doc. 20) is ADOPTED.
IT IS FURTHER ORDERED that the Commissioner's final decision in this matter
is REMANDED for further proceedings consistent with this Order and the Report and
Recommendation adopted herein. The Clerk of Court is instructed to enter judgment
accordingly and close this case.
Dated this 11th day of March, 2015.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?