1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 OLIVIA R. HOLMAN, Case No. 2:18-CV-2334 JCM (NJK)

8 Plaintiff(s), ORDER

9 v.

10 ANDREW SAUL,

11 Defendant(s).

12 13 Presently before the court is Magistrate Judge Koppe’s report and recommendation 14 (“R&R”) granting commissioner’s countermotion to affirm and denying plaintiff’s motion for 15 remand. (ECF No. 25). Plaintiff Heidi M. Johnson (“plaintiff”) objected to the R&R.1 (ECF No. 16 26). Defendant Andrew Saul (“the commissioner”) did not respond, and the time to do so has 17 passed. 18 Also before the court is plaintiff’s motion to remand (ECF No. 18), to which the 19 commissioner responded (ECF No. 22). 20 Also before the court is the commissioner’s countermotion to affirm (ECF No. 21), to 21 which plaintiff responded (ECF No. 24). 22 I. Background 23 The parties do not object to the factual presentation in the R&R. Therefore, the court adopts 24 the factual representation in the R&R and will detail factual and procedural background in the 25 discussion section of this order as necessary to explain the court’s holding. 26

27 1 Nancy Berryhill was the named defendant while she was Acting Commissioner of the 28 Social Security Administration. (See ECF Nos. 21; 22). Andrew Saul is now Commissioner of the Social Security Administration and is defending this suit accordingly. (ECF No. 23). 1 II. Legal Standard 2 A party may file specific written objections to the findings and recommendations of a 3 United States magistrate judge made pursuant to Local Rule IB 1-4.

(b)(1)(B); 4 LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the 5 court is required to “make a de novo determination of those portions of the [report and 6 recommendation] to which objection is made.”

(b)(1). The court “may accept, 7 reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 8

9 Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of 10 a magistrate judge within fourteen (14) days from the date of service of the findings and 11 recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a 12 motion within fourteen (14) days after service thereof. 13 III. Discussion 14 Judge Koppe aptly described the five-step evaluation process ALJs use to determine 15 whether an individual is disabled. (ECF No. 25 at 3–5); see also Bowen v. Yuckert,

, 16 140 (1987) (citing

, 416.920). As Judge Koppe explained: 17 Before considering step four of the sequential evaluation process, the ALJ must first determine the individual’s residual functional 18 capacity (“RFC”).

(e). The RFC is a function- by-function assessment of the individual’s ability to do physical and 19 mental work-related activities on a sustained basis despite limitations from impairments. SSR 96-8p. In making this finding, 20 the ALJ must consider all of the symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as 21 consistent with the objective medical evidence and other evidence.

; SSR 16-3p. To the extent that statements about 22 the intensity, persistence, or functionally-limiting effects of pain or other symptoms are not substantiated by objective medical 23 evidence, the ALJ must make a finding on the credibility of the individual’s statements based on a consideration of the entire case 24 record. The ALJ must also consider opinion evidence in accordance with the requirements of

. 25 26 (ECF No. 25 at 4). Here, the parties dispute the ALJ’s determination of plaintiff’s “residual 27 functional capacity” (“RFC”). (See generally ECF Nos. 18; 21; 24). 28 1 The Social Security Administration classifies jobs as “sedentary, light, medium, heavy, and 2 very heavy.”

(b), 416.967(b). A job is considered light work “when it 3 requires a good deal of walking or standing . . . .”

A sedentary job, on the other hand, “is 4 defined as one which involves sitting,” although walking and standing may be required 5 occasionally.

6 The vocational expert indicated that plaintiff’s prior work as a bus person is classified as 7 “medium exertion,” but that “it appears that it was actually performed at the light level . . . .” (ECF 8 No. 16-1 at 57). When asking the vocational expert a hypothetical, the ALJ specifically mentioned 9 that plaintiff’s ability to “stand, sit, and walk a total of two hours of an eight hour day, 20 minutes 10 maximum at one time on her feet” would “[o]bviously . . . preclude her past work because she was 11 on her feet a lot longer than that time frame.”

. Indeed, the ALJ ultimately concluded that 12 “[t]he [plaintiff] is unable to perform any past relevant work.”

. To that end, the ALJ 13 asked the vocational expert for examples of “very sedentary” positions.

at 65 14 At the hearing, the vocational expert indicated that plaintiff would need “sedentary, 15 unskilled employment.”

. She suggested “small parts assembler,” which has a strength 16 rating of light work.

Although plaintiff was “obviously precluded” from her past work—which 17 was labeled medium exertion but was performed as light work—the vocational expert also 18 recommended “hand packager,” which is technically a medium-exertion job which labor market 19 studies suggest is “performed at the sedentary level” in “a certain percentage.”2

20 Further, the ALJ claimed to accord “great weight” to the opinions of Dr. Rene Pena and 21 Dr. Leonard Simpson because they were “consistent with the medical evidence of record.”

at 22 44. Both Dr. Pena and Dr. Simpson determined that plaintiff’s RFC allowed only sedentary work. 23

. Nonetheless, the ALJ determined that plaintiff’s RFC allowed her to 24 perform light work, although he noted that “[plaintiff]’s ability to perform all or substantially all 25 of the requirements of [light] work has been impeded by additional limitations.”

. 26

27 2 The vocational expert indicated that she provided the ALJ with the “certain percentage,” 28 but the ALJ does not reference that percentage in his findings, and that percentage is not elsewhere in the record. (See ECF No. 16-1 at 66). 1 Regardless of the weight—or lack thereof—that the ALJ gave plaintiffs subjective testimony, the court finds that the ALJ’s determination of plaintiff's RFC is not supported by 3| substantial evidence. To the contrary, the ALJ’s determination is unsupported by the opinions of Dr. Pena and Dr. Simpson, the evidence that he supposedly relied on and gave great weight to. 5 | Every indication in the record is that plaintiff's RFC was limited to sedentary work, including the 6 | ALJ’s representations at the hearing and his conclusion that plaintiff cannot perform any past 7 | relevant work. 8 Accordingly, the court finds that remand is appropriate.* 9| IV. Conclusion 10 Accordingly, 11 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Judge Koppe’s R&R 12 | (ECF No. 25) be, and the same hereby is, OVERRULED, consistent with the foregoing. 13 IT IS FURTHER ORDERED that plaintiffs motion to remand (ECF No. 18) be, and the same hereby is, GRANTED. 15 IT IS FURTHER ORDERED that the commissioner’s cross motion to affirm (ECF No. 21) 16 | be, and the same hereby is, DENIED 17 IT IS FURTHER ORDERED that the matter of Holman yv. Saul, case number 2:18-cv- 18 | 02334-JCM-NJK, be, and the same hereby is, REMANDED to the Social Security Administration 19 | for further administrative proceedings consistent with this order. 20 DATED January 13, 2020. 21 MB tte 0. Atala. 9 UNFTED STATES DISTRICT JUDGE 23 24 25 26 27 28) 000 3 The court need not reach plaintiff's other objections to the R&R. es C. Mahan District Judge _4-