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Yarborough v. Berryhill

United States District Court, D. Oregon

October 24, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         United States Magistrate Judge Stacie F. Beckerman issued Findings and Recommendation (“F&R”) in this case on August 31, 2017. ECF 23. Judge Beckerman recommended that the finding of the Commissioner of Social Security (“Commissioner”) that Plaintiff is not disabled be affirmed.

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate's recommendations for “clear error on the face of the record.”

         Plaintiff timely filed an objection (ECF 25), to which Defendant responded. ECF 26. The Court has reviewed de novo this portion of the F&R, Plaintiff's objections, Defendant's response, the underlying briefing before Judge Beckerman, and the relevant portions of the administrative record (“AR”). For the reasons discussed below, the F&R is adopted in part.


         A. Moderate Limitations in Concentration, Persistence, and Pace

         The Court does not adopt the portion of the F&R relating to the RFC limitation to “unskilled work.” Plaintiff argues that the unskilled work limitation is insufficient to describe Plaintiff's difficulties with maintaining concentration, persistence, and pace. The argument is well taken.

         The RFC limits Plaintiff to “unskilled work” without any further specific limitation regarding concentration, persistence, or pace. An ALJ's summarized assessment may “adequately capture[ ] restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Stubbs-Danielson is inapplicable, however, when medical evidence establishes that a plaintiff has limitations in concentration, persistence, or pace. See Brink v. Comm'r Soc. Sec. Admin., 343 F. App'x 211, 212 (9th Cir. 2009) (“The medical testimony in Stubbs-Danielson, however, did not establish any limitations in concentration, persistence, or pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that Brink does have difficulties with concentration, persistence, or pace. Stubbs-Danielson, therefore, is inapposite.”)).

         In Stubbs-Danielson, the ALJ did not err in determining that the plaintiff could perform “simple tasks, ” notwithstanding some evidence that the plaintiff had deficiencies with regard to pace, because the medical evidence showed that the plaintiff had “a slow pace, both in thinking & actions” but “retained the ability to ‘carry out simple tasks'.” Id. at 1173. This Court previously has found that a limitation of “unskilled work” without more is insufficient to incorporate difficulties in concentration, persistence, and pace. Oberg v. Colvin, 2014 WL 3695609 at *13 (D. Or. July 24, 2014); see also Lubin v. Comm'r Soc. Sec. Admin., 507 F. App'x 709, 712 (9th Cir. 2013) (“Although the ALJ found that Lubin suffered moderate difficulties in maintaining concentration, persistence, or pace, the ALJ erred by not including this limitation in the residual functional capacity determination[.]”); Doty v. Astrue, 2014 WL 1269479, at *3 (D. Or. Mar. 26, 2014) (“Unskilled work, by itself, does not adequately capture plaintiff's ‘moderate limitation' with regard to concentration, persistence and pace.”); Juarez v. Colvin, 2014 WL 1155408, at *7 (C.D. Cal. Mar. 20, 2014) (finding that because the ALJ expressly found moderate limitations in concentration, persistence, and pace, “the ALJ's RFC determination should have included not only the limitation to unskilled work, but also a moderate limitation in maintaining concentration, persistence, and pace”).

         Here, the ALJ concluded at step two that Plaintiff had moderate difficulties with regard to concentration, persistence, and pace. The RFC, however, only limited Plaintiff to performing unskilled work, with no mention of her specific limitations with regard to concentration, persistence, and pace. Therefore, the ALJ failed adequately to incorporate Plaintiff's mental limitations into the RFC. This was error.

         B. Leg Elevation Limitation

         The Court also declines to adopt the portion of the F&R regarding the ALJ's failure to incorporate Plaintiff's leg elevation limitation into the RFC. Plaintiff argues that the ALJ erred in not incorporating the medical opinion of Dr. Neil Roundy that Plaintiff needed to take frequent breaks throughout the day to elevate her legs. ECF 17. The Commissioner responds that the RFC adequately incorporates Dr. Roundy's opinion. ECF 18. For the reasons explained below, the Court agrees with Plaintiff.

         The RFC represents the most that an individual can do despite her impairments. Social Security Ruling (“SSR”) 96-8p, available at 1996 WL 374184, at *4. SSR 96-8p states that “[t]he RFC assessment must be based on all of the relevant evidence in the case record, such as . . . [m]edical history, [m]edical signs and laboratory findings, . . . [and m]edical source statements.” Id. at *5.[1] To reject an uncontradicted opinion from an examining physician, the ALJ must provide clear and convincing reasons that are supported by substantial evidence. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). An ALJ errs by ignoring an examining physician's medical opinion without providing reasons for ...

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