Betten v. Berryhill

Filing 34

ORDER. IT IS HEREBY ORDERED that 31 the Magistrate Judge's Report and Recommendation is ADOPTED and AFFIRMED. Plaintiff Robert Betten's 21 Motion to Remand to the Social Security Administration is GRANTED, and Commissioner Saul's 26 Countermotion to Affirm the Agency's Decision is DENIED. This case is hereby REMANDED to the Social Security Agency for further proceedings. Signed by Judge Kent J. Dawson on 8/20/2019. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

ROBERT D. BETTEN,

8

Plaintiff,

9
10

ORDER

v.
ANDREW SAUL,

11
12

Case No. 2:18-cv-0536-KJD-NJK

Commissioner of Social Security.
Before the Court is a Report and Recommendation (#31), prepared by Magistrate Judge

13

Koppe, which recommends that the Court grant plaintiff Robert Betten’s Motion for Reversal

14

and/or Remand (#21) in part and that the Court deny Commissioner Saul’s Countermotion to

15

Affirm (#26). Commissioner Saul timely objected to the Magistrate Judge’s findings and

16

recommendation (#32), and Betten responded (#33). The Court has conducted a de novo review

17

of the portions of Magistrate Judge Koppe’s findings to which Commissioner Saul has objected

18

under 28 U.S.C. § 636(b)(1)(C) and finds that the Report and Recommendation should be

19

ADOPTED and AFFIRMED.

20

Commissioner Saul objects to Magistrate Judge Koppe’s finding that Administrative Law

21

Judge Cynthia Hooper (“ALJ”) errantly determined that Betten’s residual functional capacity

22

allowed him to stand for six-hours per day despite multiple doctors’ reports that Betten could

23

stand, at most, four hours per day.1 A social security claimant’s residual functional capacity is

24

“the most [he] can still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a). The

25

ALJ may consider medical evidence, testimony, and the claimant’s credibility to determine his

26
27
28

1

The Magistrate Judge also found that the ALJ’s determination was not harmless error. Commissioner Saul
did not object to that finding, and the Court will not reach it here. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc) (“the district judge must review the magistrate judge’s findings and recommendations
de novo if objection is made, but not otherwise”).

1

functional capacity. See, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th

2

Cir. 2009). Although residual functional capacity is an administrative determination, the ALJ

3

cannot substitute her own medical opinion for independent clinical findings. See Tackett v.

4

Apfel, 180 F.3d 1094, 1102–03 (9th Cir. 1999); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.

5

1996) (An ALJ “must not succumb to the temptation to play doctor and make [her] own

6

independent medical findings”). The Court will uphold the ALJ’s determination if it is supported

7

by substantial evidence. 42 U.S.C. § 405(g).

8
9

The Commissioner does not dispute that multiple doctors found that Betten was unable to
stand more than four hours per day. See, e.g., Physician Report at A.R. 80 (four-hour standing

10

limitation); A.R. 96 (same); A.R. 373 (same); A.R. 563 (two-hour standing limitation); A.R. 570

11

(same). Instead, the Commissioner argues that other evidence in the record justifies the ALJ’s

12

less restrictive six-hour standing limitation. Specifically, Commissioner Saul cites portions of

13

physician’s reports that Betten was “neurologically intact without evidence of problems

14

walking” (A.R. 29–33), that Betten did not show signs of “muscle wasting” and did not need a

15

cane to walk (A.R. 371–72); and that Betten’s physicians advised him to return to full activity

16

after knee surgery (A.R. 354, 443). That evidence, the Commissioner argues, supports a six-hour

17

per day limitation and not a four- or two-hour limitation.

18

However, as Magistrate Judge Koppe found, the fact that Betten was “able to walk does

19

not explain how long he is able to walk or stand.” Mag. R&R 11, ECF No. 31 quoting Hystad v.

20

Berryhill, No. C17-1702 RAJ, 2018 WL 4091034, at *3 (W.D. Wash. Aug. 28, 2018) (first

21

emphasis added). None of the medical opinions in this record support a six-hour standing

22

limitation, and the ALJ did not provide sufficient explanation to deviate from the multiple

23

reports that recommended a two- or four-hour limit. Therefore, the Court agrees with the

24

Magistrate Judge’s finding that the ALJ’s determination is not supported by substantial evidence.

25

Accordingly, IT IS HEREBY ORDERED that the Magistrate Judge’s Report and

26

Recommendation (#31) is ADOPTED and AFFIRMED. Plaintiff Robert Betten’s Motion to

27

Remand to the Social Security Administration (#21) is GRANTED, and Commissioner Saul’s

28

Countermotion to Affirm the Agency’s Decision (#26) is DENIED.

-2-

1
2

This case is hereby REMANDED to the Social Security Agency for further proceedings.
Dated this 20th day of August, 2019.

3
4
5

_____________________________
Kent J. Dawson
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-