United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
L. ROBART UNITED STATES DISTRICT JUDGE.
matter comes before the court on the Report and
Recommendation of United States Magistrate Judge Theresa
Fricke (R&R (Dkt. #17)); Plaintiff Kari Moon's
objections to the Report and Recommendations (PI. Obj. (Dkt.
# 19)); and Defendant Nancy Berryhill's ("the
Commissioner") objections to the Report and
Recommendations (Def. Obj. (Dkt. #18)). Having carefully
reviewed all of the foregoing, along with the responses to
those objections, the administrative record, and the
governing law, the court ADOPTS the Report and Recommendation
for the reasons discussed below.
STANDARD OF REVIEW
district court has jurisdiction to review a Magistrate
Judge's report and recommendation on dispositive matters.
Fed.R.Civ.P. 72(b). "The district judge must determine
de novo any part of the magistrate judge's disposition
that has been properly objected to." Id.
"A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1). The court
reviews de novo those portions of the report and
recommendation to which specific written objections are made.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc). "The statute makes it clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise." Id.
party's objections raise any novel issue that was not
addressed by Magistrate Judge Fricke's Report and
Recommendation. Moreover, the court has thoroughly examined
the record before it and finds the Magistrate Judge's
reasoning persuasive in light of that record. Accordingly,
the court independently rejects the parties' arguments
made in its objections for the same reasons as Magistrate
Judge Fricke did.
the court makes one clarification. Magistrate Judge
Fricke's recommendation that the Administrative Law Judge
("ALJ") must specify how often Ms. Moon must change
between sitting and standing was based on Social Security
Ruling ("SSR") 96-9p. (R&R at 4-5.) The
Commissioner argues that this recommendation is erroneous
because SSR 96-9 only applies "to individuals who are
limited to less than sedentary work, rather than the light
work of which [Ms. Moon] was capable." (Def. Obj. at 2.)
The court agrees with the Commissioner that SSR 96-9p does
not apply to light work. See Hodge v. Barnhart, 76
Fed.Appx. 797, 800 (9th Cir. 2003) ("Ruling 96-9p does
not apply to light work.").
Magistrate Judge Fricke's recommendation is supported by
SSR 83-12. SSR 83-12 addresses the "special
situation" of alternate sitting and standing generally
and directs the ALJ to consult a vocational expert to
"clarify the implications for the occupational
base." Titles II and XVI: Capability to Do Other
Work-The Medical-Vocational Rides as a Framework for
Evaluating Exertional Limitations Within a Range of Work or
Between Ranges of Work, 1983-1991 Soc. Sec. Rep. Serv.
36, at *4 (1983). As SSR 83.12 explains, there are jobs in
the national economy that provide a degree of choice between
sitting and standing, but these positions are typically
professional and managerial. Id. Unskilled types of
jobs are more often structured so that a person cannot choose
when or whether to sit or stand. Id. For this
reason, SSR 83-12 advises consultation with a vocational
expert. See Id. For that consultation to be
effective, the ALJ to be more specific about how often Ms.
Moon would need to change positions. See Id. Without
that specificity here, there is no way for the ALJ, or the
court, to determine if the vocational expert's testimony
provides a sufficient basis for the ALJ's conclusions.
foregoing reasons, the court ADOPTS the Report and
Recommendation (Dkt. # 17) with the clarification that more
specificity regarding how often Ms. Moon needs to alternate
between sitting and standing is supported by SSR 83-12 and is
necessary to permit the ALJ, and the court, to determine
whether the vocational expert's testimony provides a
sufficient basis for the ALJ's decision. The
Commissioner's decision is REVERSED, and the case is
REMANDED to the Social Security Administration for further
proceedings consistent with the Report and Recommendation.
The court DIRECTS the Clerk to send copies of this order to
the parties and the Honorable Theresa Fricke.
 SSR 96-9p, entitled "Implications
of a Residual Functional Capacity for Less than a Full Range
of Sedentary Work, " states "[t]he [Residual
Functional Capacity] assessment must be specific as to the
frequency of the individual's need to alternate sitting
and standing." Policy Interpretation Riding Titles
II and XVI: Determining Capability to Do Other
Work-Implications of a Residual Functional Capacity for ...