Vandiver v. Colvin

Filing 32

ORDER that 29 Report and Recommendation is ACCEPTED and ADOPTED in full. FURTHER ORDERED that 18 Motion to Remand is DENIED. FURTHER ORDERED that 23 Cross-Motion to Affirm is GRANTED. Signed by Chief Judge Gloria M. Navarro on 4/19/17. (Copies have been distributed pursuant to the NEF - MMM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

ROSA G. VANDIVER,
4

Plaintiff,

5
6

vs.

7

NANCY A. BERRYHILL,

8

Defendant.

9
10

)
)
)
)
)
)
)
)
)
)

Case No.: 2:15-cv-00886-GMN-NJK

ORDER

Pending before the Court for consideration is a Motion to Remand, (ECF No. 18), filed

11

by Plaintiff Rosa G. Vandiver (“Plaintiff”), and the Cross–Motion to Affirm, (ECF No. 23),

12

filed by Defendant Nancy A. Berryhill1 (“Defendant” or “the Commissioner”). These motions

13

were referred to the Honorable Nancy J. Koppe, United States Magistrate Judge, for a report of

14

findings and recommendations pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C).
On June 27, 2016, Judge Koppe entered the Report and Recommendation (“R. & R.”),

15
16

(ECF No. 29), recommending Plaintiff’s Motion to Remand be denied and the Commissioner’s

17

Cross–Motion to Affirm be granted. Plaintiff filed her Objection, (ECF No. 30), to the Report

18

and Recommendation, on July 11, 2016. The Commissioner filed a Response, (ECF No. 31), to

19

the Objection on July 28, 2016.

20

I.

BACKGROUND

21

Plaintiff brings this action against Defendant in her capacity as the Commissioner of the

22

Social Security Administration, pursuant the Social Security Act, 42 U.S.C. § 405(g). (Compl.,

23
24
1

25

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.

Page 1 of 3

1

ECF No. 3). Plaintiff seeks judicial review of a final decision of the Commissioner of the

2

Social Security Administration denying her claims for social security disability benefits under

3

Title II of the Social Security Act, 42 U.S.C. §§ 401–403. (Id. ¶ 3).

4

Plaintiff applied for disability insurance benefits on August 10, 2011, which were denied

5

initially and upon reconsideration. (Id. ¶ 6–7); (Admin. R. (“A.R.”) at 233, ECF No. 17-1).

6

Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), who ultimately

7

issued an unfavorable decision denying Plaintiff’s benefits claim. (Compl. ¶ 7). Plaintiff timely

8

requested Appeals Council review of the ALJ’s decision, which was denied on March 16, 2015.

9

(Id. ¶ 8).

10

II.

11

LEGAL STANDARD
A party may file specific written objections to the findings and recommendations of a

12

United States Magistrate Judge made pursuant to Local Rule IB 1–4. 28 U.S.C. § 636(b)(1)(B);

13

D. Nev. Local R. IB 3-2. Upon the filing of such objections, the Court must make a de novo

14

determination of those portions of the Report to which objections are made. Id. The Court may

15

accept, reject, or modify, in whole or in part, the findings or recommendations made by the

16

Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local R. IB 3-2(b).

17

III.

DISCUSSION

18

Plaintiff asserts two objections to the Report and Recommendation, which largely

19

reassert her same arguments before Judge Koppe. First, relying on Stubbs-Danielson v. Astrue,

20

539 F.3d 1169 (9th Cir. 2008), Plaintiff argues that “[a] limitation to simple work equate [sic]

21

to a limitation of no more than unskilled work.” (Obj. 5:9, ECF No. 30). As Judge Koppe

22

recognized, however, “the Ninth Circuit made that finding based on the medical record in that

23

case and did not hold that such a finding was required in every case.” (R. & R. 7:25–26, ECF

24

No. 29). Indeed, Plaintiff “agrees with the Court that such a finding is not required in every

25

case.” (Obj. 4:15–16). The medical record in this case shows that Plaintiff “demonstrated good

Page 2 of 3

1

attention and concentration capabilities when in a more structured and less stressful situation,”

2

supporting the ALJ’s finding that Plaintiff was limited to no more than moderately complex

3

tasks of an SVP of 4 or less. (A.R. at 46–47).

4

Next, Plaintiff asserts that the ALJ erred by failing to account for Plaintiff’s limitations

5

in social functioning in determining her residual functioning capacity (“RFC”). (See Obj. 6:4).

6

After reviewing the ALJ’s findings, the Court agrees with Judge Koppe that “the ALJ discussed

7

the record that existed with respect to any difficulties Plaintiff had in social functioning in

8

conducting the Step 2 analysis” and properly incorporated the Step 2 analysis into the RFC

9

assessment. (R. & R. 29:5–17); (see also A.R. at 43–44). Further, to the extent Plaintiff argues

10

that the ALJ posed incomplete hypotheticals to the vocational expert, “a step-two determination

11

that a non-exertional impairment is severe does not require that the ALJ seek the assistance of a

12

vocational expert at step five.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007).
Having reviewed the Commissioner’s objections de novo, the Court finds no basis on

13
14

which to reject Judge Koppe’s findings and recommendations. The Court therefore grants the

15

Commissioner’s Cross-Motion to Affirm and denies Plaintiff’s Motion to Remand.

16

IV.

17
18
19
20
21
22
23
24
25

CONCLUSION
IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 29), be

ACCEPTED and ADOPTED in full, to the extent that it is not inconsistent with this Order.
IS FURTHER ORDERED that Plaintiff’s Motion to Remand, (ECF No. 18), is
DENIED.
IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm, (ECF
No. 23), is GRANTED.
19
DATED this _____ day of April, 2017.

___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

Page 3 of 3