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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 14 15 FRAN A. FAULKNER, ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) _________________________________ ) 16 3:16-cv-00215-HDM-VPC ORDER Plaintiff has filed a motion for reversal and/or remand of the 17 defendant’s denial of her claim for social security disability 18 benefits (ECF No. 12). 19 affirm (ECF No. 16). 20 issued her report and recommendation recommending that the court 21 grant in part the plaintiff’s motion, deny the defendant’s cross- 22 motion, and remand for further proceedings (ECF No. 18). 23 defendant has objected to the report and recommendation (ECF No. 24 19). 25 the time for doing so has expired. 26 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 27 parties and other relevant matters of record and has made a review 28 and determination in accordance with the requirements of 28 U.S.C. 1 1 § 636 and applicable case law, and good cause appearing, the court 2 hereby ADOPTS AND ACCEPTS in part and DECLINES TO ADOPT in part the 3 report and recommendation of the United States Magistrate Judge 4 (ECF No. 18). 5 The court adopts and accepts the report and recommendation 6 insofar as it upholds the Administrative Law Judge’s findings to 7 which the plaintiff objected. 8 the conclusion that remand is necessary because the ALJ’s residual 9 functional capacity assessment and hypothetical to the vocational 10 expert did not include a limitation of one- or two-step tasks and 11 instructions. 12 However, the court declines to adopt (See ECF No. 18 at 8-10). Each job listing in the Dictionary of Occupational Titles is 13 categorized to one of six Reasoning Levels. 14 Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015). 15 Level One requires the ability to carry out “simple one- or 16 two-step instructions”; thus, a limitation to one- or two-step 17 tasks equates with a Reasoning Level One. 18 Two requires the ability to carry out “detailed but uninvolved 19 written or oral instructions.” 20 and hypothetical provided that plaintiff could perform some 21 detailed, but uncomplicated, tasks, and did not include a one- to 22 two-step limitation. 23 hypothetical thus appear to find that plaintiff can perform at a 24 Reasoning Level Two. 25 Dr. Edwards’ opinion that plaintiff could perform one- and two-step 26 tasks and instructions (AR 25) – a seeming restriction to Reasoning 27 Level One. 28 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’ 2 1 hypothetical to the vocational expert. 2 assessment and hypothetical was that the ALJ found plaintiff 3 capable of performing past relevant work and other jobs in the 4 national economy that require a Reasoning Level Two. 5 the job of prep cook that, at the time of the ALJ hearing, 6 plaintiff had been performing for more than two years. 7 The result of the RFC This included The court may not reverse an ALJ’s decision based on harmless 8 error. 9 (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2015) 10 Given that plaintiff was currently performing a job that required 11 Reasoning Level Two, any error in failing to include a restriction 12 to Reasoning Level One was harmless. 13 was capable of performing at a Reasoning Level Two. 14 it proved she could perform her “past relevant work” as a prep cook 15 and therefore was not entitled to disability. 16 concludes that remand is not required under these circumstances, 17 and the defendant’s cross-motion to affirm should be granted and 18 the plaintiff’s motion for reversal and/or remand should be denied. 19 Plaintiff’s work proved she At a minimum, Therefore, the court In accordance with the foregoing, plaintiff’s motion for 20 remand (ECF No. 12) is DENIED, and defendant’s cross-motion to 21 affirm (ECF No. 16) is GRANTED. 22 judgment accordingly. The clerk of the court shall enter 23 IT IS SO ORDERED. 24 DATED: This 10th day of February, 2017. 25 26 ____________________________ UNITED STATES DISTRICT JUDGE 27 28 3

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