Faulkner v. Colvin

Filing 20

ORDER - Plaintiff's motion for remand (ECF No. 12 ) is DENIED, and defendant's cross-motion to affirm (ECF No. 16 ) is GRANTED. The clerk of the court shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 2/10/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRAN A. FAULKNER,

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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security, )
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Defendant.
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_________________________________ )

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3:16-cv-00215-HDM-VPC
ORDER

Plaintiff has filed a motion for reversal and/or remand of the

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defendant’s denial of her claim for social security disability

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benefits (ECF No. 12).

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affirm (ECF No. 16).

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issued her report and recommendation recommending that the court

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grant in part the plaintiff’s motion, deny the defendant’s cross-

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motion, and remand for further proceedings (ECF No. 18).

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defendant has objected to the report and recommendation (ECF No.

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19).

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the time for doing so has expired.

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The defendant has filed a cross-motion to
On January 4, 2017, the magistrate judge

The

Plaintiff has not filed any response to the objections, and

The court has considered the pleadings and memoranda of the

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parties and other relevant matters of record and has made a review

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and determination in accordance with the requirements of 28 U.S.C.
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§ 636 and applicable case law, and good cause appearing, the court

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hereby ADOPTS AND ACCEPTS in part and DECLINES TO ADOPT in part the

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report and recommendation of the United States Magistrate Judge

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(ECF No. 18).

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The court adopts and accepts the report and recommendation

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insofar as it upholds the Administrative Law Judge’s findings to

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which the plaintiff objected.

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the conclusion that remand is necessary because the ALJ’s residual

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functional capacity assessment and hypothetical to the vocational

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expert did not include a limitation of one- or two-step tasks and

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instructions.

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However, the court declines to adopt

(See ECF No. 18 at 8-10).

Each job listing in the Dictionary of Occupational Titles is

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categorized to one of six Reasoning Levels.

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Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015).

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Level One requires the ability to carry out “simple one- or

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two-step instructions”; thus, a limitation to one- or two-step

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tasks equates with a Reasoning Level One.

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Two requires the ability to carry out “detailed but uninvolved

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written or oral instructions.”

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and hypothetical provided that plaintiff could perform some

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detailed, but uncomplicated, tasks, and did not include a one- to

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two-step limitation.

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hypothetical thus appear to find that plaintiff can perform at a

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Reasoning Level Two.

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Dr. Edwards’ opinion that plaintiff could perform one- and two-step

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tasks and instructions (AR 25) – a seeming restriction to Reasoning

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Level One.

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opinion is therefore inconsistent with the RFC assessment and

See id.

(See AR 23, 60).

See Rounds v. Comm’r

See id.

A Reasoning

Reasoning Level

The ALJ’s RFC assessment

The RFC assessment and

However, the ALJ also gave great weight to

The ALJ’s decision to give great weight to Dr. Edwards’

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hypothetical to the vocational expert.

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assessment and hypothetical was that the ALJ found plaintiff

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capable of performing past relevant work and other jobs in the

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national economy that require a Reasoning Level Two.

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the job of prep cook that, at the time of the ALJ hearing,

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plaintiff had been performing for more than two years.

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The result of the RFC

This included

The court may not reverse an ALJ’s decision based on harmless

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error.

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(citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)).

Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2015)

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Given that plaintiff was currently performing a job that required

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Reasoning Level Two, any error in failing to include a restriction

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to Reasoning Level One was harmless.

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was capable of performing at a Reasoning Level Two.

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it proved she could perform her “past relevant work” as a prep cook

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and therefore was not entitled to disability.

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concludes that remand is not required under these circumstances,

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and the defendant’s cross-motion to affirm should be granted and

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the plaintiff’s motion for reversal and/or remand should be denied.

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Plaintiff’s work proved she
At a minimum,

Therefore, the court

In accordance with the foregoing, plaintiff’s motion for

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remand (ECF No. 12) is DENIED, and defendant’s cross-motion to

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affirm (ECF No. 16) is GRANTED.

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judgment accordingly.

The clerk of the court shall enter

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IT IS SO ORDERED.

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DATED: This 10th day of February, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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