Barron v. Astrue

Filing 26

ORDER that the ALJ's decision is vacated. IT IS FURTHER ORDERED that this case is REMANDED for an award of benefits. Signed by Judge G Murray Snow on 6/22/2012. (KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15

)
)
)
Plaintiff,
)
)
vs.
)
)
Michael J. Astrue, Commissioner of Social)
)
Security,
)
)
Defendant.
)
)
Ineka J. Barron,

No. CV-11-2002-PHX-GMS
ORDER

16
17

Pending before the Court is Plaintiff Ineka Barron’s appeal of the Social Security

18

Administration’s (the “Administration”) decision to deny benefits. (Doc. 1). For the reasons

19

set forth below, the Court vacates that decision and remands for a determination of benefits.

20

BACKGROUND

21

I.

Procedural Background

22

On February 26, 2008, Plaintiff applied for disability insurance benefits and

23

supplemental security income, alleging a disability onset date of July 1, 2007. (R. at 128–

24

36). Her claim was denied initially and on reconsideration. She was given a hearing on

25

August 11, 2009 before Administrative Law Judge (“ALJ”) William Thompson, Jr. (R. at

26

54–86). On December 14, 2009, the ALJ concluded that Plaintiff was not disabled, and the

27

Appeals Council denied her request for review on August 23, 2011, leaving the ALJ’s

28

decision as the Commissioner’s final decision. (R. at 26–35, 2–4). Barron then brought this

1

suit in federal court. (Doc. 1). The appeal is now fully briefed before this Court. (Docs. 21,

2

24, 25).1

3

II.

Factual Background

4

Plaintiff was born on January 31, 1982, and was 25 when she claims to have become

5

disabled and 27 when the ALJ issued his decision. (R. at 128). She has completed the

6

equivalence of a high-school education and is certified as a nursing assistant. (R. at 206).

7

Previously she worked as a waitress, in retail sales at Walmart, and as a nurse assistant. (R.

8

at 61). On her disability report, she reported being disabled due to lupus, bipolar disorder,

9

and depression. (R. at 201).

10

The ALJ discussed seven medical reports in his finding. Plaintiff was treated by Priti

11

Bhardwaj, M.D., beginning in January 2008. (R. at 299–313). Dr. Bhardwaj diagnosed

12

Plaintiff with lupus, bipolar disorder, depression, and fibromyalgia; he noted that Plaintiff

13

“aches with pain” and “cannot lift anything over five pounds.” (R. at 325–26). On June 30,

14

2008, she was evaluated by Dr. Basivi Baddigam, who concluded that she had Dysthymic

15

disorder and gave a “guarded” prognosis. (R. at 268–70). On July 15, 2008, Dr. Nighet Khan

16

conducted a Mental Residual Functional Capacity Assessment (“MRFCA”) and a Psychiatric

17

Review. (R. at 272–290). Dr. Khan concluded that Plaintiff suffered from “dysthymic

18

disorder,” that she had moderate difficulties maintaining her concentration, a moderately

19

limited ability to accept instructions, and that she “retains the mental capacity to do simple

20

unskilled tasks with sustainability.” (Id.). On July 17, 2008, state agency physician William

21

Joh conducted a physical residual functional capacity assessment during which he wrote that

22

Plaintiff could frequently lift ten pounds and occasionally lift twenty pounds. (R. at 292). In

23

support of this conclusion, Dr. Joh wrote, “see 416 of 6-13-08.” (Id.). The record does not

24
25
26
27
28

1

When Plaintiff had her hearing, she lived in Michigan, and she appeared at the
hearing by video conference before an ALJ in Stockton, California. Both parties have cited
to Ninth Circuit social security law in their briefings. (Docs. 20, 24). To the extent that either
party could have claimed that Sixth Circuit law should apply because Plaintiff was a
Michigan resident when she filed her claim, the argument has not been raised and is therefore
waived.
-2-

1

contain a form SSA-416 (Medical Evaluation) or any document completed on June 13, 2008.

2

It does contain a form SSA-448 (Request for Medical Advice) that was completed on June

3

10, 2008, in which the examiner noted that Plaintiff can cook meals and do laundry but “has

4

problems walking, kneeling, reaching, standing, bending, squatting, and lifting,” and that her

5

complaints “appear to be partially credible.” (R. at 267). On October 15, 2008, she was seen

6

by Dr. Ashraf Mohamed, who diagnosed her with lupus and wrote that she experienced back

7

pain when walking on tiptoe. (R. at 323–24). On August 6, 2009, Wayne Gorman, a non-

8

physician therapist, prepared a Mental Capacities Evaluation, based on his therapy with

9

Plaintiff from January 2008 through August 2009. (R. at 435–41). On August 12, 2009, Dr.

10

Mustapha Mallah, who had been seeing Plaintiff since April of 2008, wrote that her pain was

11

“severe,” her weakness and fatigue were “moderate,” her complaints were credible, she had

12

suffered a “CVA” (a cerebral vascular accident, or stroke) in May of 2009, and that she could

13

not perform sedentary or light work. (R. at 329–31; 453–56).

14

At her hearing, Plaintiff stated that she had not cooked for three months prior to the

15

hearing, that her hands “crimp up” when she tries to do housework, that she spends six to

16

eight hours a day lying down, that she sleeps only two hours a night, that she cannot lift a

17

gallon of milk, that she uses a cane to walk, and that she can only sometimes bathe and dress

18

without assistance. (R. at 67–72). Susan Moranda, a vocational expert (“VE”), also testified

19

at the hearing. (R. at 80–86). The ALJ asked the VE to consider two hypothetical workers.

20

The first was a person who could lift twenty pounds occasionally and ten pounds frequently,

21

but could only perform work involving relatively simple instructions; the second was a

22

person who could not stand for more than two hours a day and was only capable of lifting

23

ten pounds occasionally. The VE provided job titles that either of the hypothetical workers

24

could perform in the Michigan economy. (R. at 81–84). Plaintiff’s attorney asked the VE if

25

a hypothetical person with the physical limitations described in Dr. Bhardwaj’s report, or the

26

mental limitations described in Gorman’s report, would be able to perform any kind of work,

27

and the VE agreed that such a person could not. (R. at 85).

28

In evaluating whether Plaintiff was disabled, the ALJ undertook the five-step
-3-

1

sequential evaluation for determining disability.2 (R. at 26–35). At step one, the ALJ

2

determined that Plaintiff had not engaged in substantial gainful activity since the alleged

3

onset date. (R. at 28). At step two, the ALJ determined that Plaintiff suffered from the severe

4

impairments of systemic lupus erythematosus and dysthymic disorder. (Id.). At step three,

5

the ALJ determined that none of these impairments, either alone or in combination, met or

6

equaled any of the Administration’s listed impairments. (R. at 29). Here, the ALJ specifically

7

considered whether Plaintiff’s lupus qualified as an impairment under Listing 14.02, but

8

found that none of the medical evidence documented “listing-level severity.” (Id.).

9

At that point, the ALJ made a determination of Plaintiff’s residual functional capacity

10

(“RFC”),3 concluding that Plaintiff could perform light work. (R. at 30). Specifically, the

11

ALJ found that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds

12
13
14

2

The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520
(governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental
security income). Under the test:

15
A claimant must be found disabled if she proves: (1) that she is
not presently engaged in a substantial gainful activity[,] (2) that
her disability is severe, and (3) that her impairment meets or
equals one of the specific impairments described in the
regulations. If the impairment does not meet or equal one of the
specific impairments described in the regulations, the claimant
can still establish a prima facie case of disability by proving at
step four that in addition to the first two requirements, she is not
able to perform any work that she has done in the past. Once the
claimant establishes a prima facie case, the burden of proof
shifts to the agency at step five to demonstrate that the claimant
can perform a significant number of other jobs in the national
economy. This step-five determination is made on the basis of
four factors: the claimant’s residual functional capacity, age,
work experience and education.

16
17
18
19
20
21
22
23
24
25
26
27
28

Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and quotations
omitted).
3

An RFC documents what work-related task a claimant can perform despite the
limitations caused by her impairments. See S.S.R. 96-8p (July 2, 1996).
-4-

1

frequently, and could stand, sit, and walk six hours during an eight-hour workday. The ALJ

2

found that Plaintiff could only perform work involving simple instructions. The ALJ then

3

determined at step four that Plaintiff did not retain the RFC to perform her past relevant work

4

as a certified nurse assistant in a nursing home. (R. at 34). The ALJ therefore reached step

5

five, where he determined that Plaintiff could perform a significant number of other jobs in

6

the national economy that met her RFC limitations. (Id.). Given this analysis, the ALJ

7

concluded that Plaintiff was not disabled. (Id.).

8
9

DISCUSSION
I.

Standard of Review

10

A reviewing federal court will only address the issues raised by the claimant in the

11

appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).

12

A federal court may set aside a denial of disability benefits only if that denial is either

13

unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d

14

947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a

15

preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence which,

16

considering the record as a whole, a reasonable person might accept as adequate to support

17

a conclusion.” Id. (quotation omitted).

18

The ALJ is responsible for resolving conflicts in testimony, determining credibility,

19

and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

20

“When the evidence before the ALJ is subject to more than one rational interpretation, we

21

must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

22

1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must

23

resolve conflicts in evidence, and if the evidence can support either outcome, the court may

24

not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th

25

Cir. 1992) (citations omitted).

26

An ALJ cannot reject a treating or examining physician’s uncontradicted medical

27

testimony except based upon “clear and convincing reasons,” but may reject contradicted

28

testimony for “specific and legitimate reasons that are supported by substantial evidence in
-5-

1

the record.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).

2

Before rejecting subjective testimony by a claimant about the severity of her symptoms that

3

is medically supported, an ALJ must offer “specific, clear and convincing reasons for doing

4

so.” Moore v. Commissioner, 278 F.3d 920, 924 (9th Cir. 2002) (quoting Smolen v. Chater,

5

80 F.3d 1273, 1281 (9th Cir. 1996)).

6

II.

Analysis

7

Plaintiff argues that the ALJ erred by: (A) failing to evaluate the opinion evidence

8

properly (Doc. 21 at 10–15), (B) improperly evaluating Plaintiff’s subjective complaints and

9

credibility (id. at 15–18), and (C) posing an incomplete hypothetical to the vocational expert

10

(id. at 18–20). These claims will be discussed in turn.

11

A.

12

An ALJ may reject the opinion of a treating physician in favor of a non-treating

13

physician only “by setting out a detailed and thorough summary of the facts and conflicting

14

clinical evidence,” stating an interpretation of the evidence, and making findings. Tommasetti

15

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Magallenes v. Bowen, 881 F.2d 747,

16

751 (9th Cir. 1989)). In this process, an ALJ “may reject a treating physician’s opinion if it

17

is based ‘to a large extent’ on a claimant’s self reports that have been properly discounted as

18

incredible.” Tommasetti, 533 at 1041 (quoting Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d

19

595, 602 (9th Cir. 1999)). The ALJ rejected opinions by those who treated Plaintiff both with

20

regards to physical and mental symptoms; the two will be discussed independently.

21

Evaluation of Opinion Evidence

1.

Physical symptoms

22

The ALJ discounted the treating physicians’ opinions regarding Plaintiff’s physical

23

condition by relying heavily on the fact that Plaintiff underwent a series of MRI tests in July

24

of 2009, and that the MRIs “revealed no degenerative changes of the claimant’s hips, and

25

normal results for her cervical spine and lumbar spine.” (R. at 31, 431–34).The MRIs were

26

ordered by Plaintiff’s treating physician, Dr. Bhardwaj, in June of 2008 and July of 2009; the

27

reasons for the exams are listed as “disc herniation” and “OA” (osteoarthritis). (Id.). The ALJ

28

mentions the MRIs three times, and on two occasions it is the only medical evidence upon
-6-

1

which he relied to discount the treating physician’s claims. (R. at 32 ¶ 3, 33 ¶2). Plaintiff

2

counters that her “primary physical conditions, lupus and fibromyalgia, are not orthopedic

3

or spinal disorders” and that an MRI would not detect them. (Doc. 21 at 11). See, e.g.,

4

Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (“There are no laboratory tests for the

5

presence or severity of fibromyalgia.”).

6

In his reply, Defendant does not mention the MRI, stating merely that the ALJ “gave

7

specific and legitimate reasons supported by substantial evidence in the record for not

8

affording the treating physicians’ opinions significant weight.” (Doc. 24 at 8). Defendant

9

does not otherwise suggest that lupus or fibromyalgia would be detected by an MRI.

10

Defendant offers no reason why the MRI, ordered by Dr. Bhardwaj to diagnose other

11

conditions, should be used to discredit Dr. Bhardwaj’s diagnosis of lupus and fibromyalgia,

12

particularly when those diagnoses were made after Dr. Bhardwaj knew the results of the

13

MRIs. (R. at 330–36). The MRI results do not comprise “specific and legitimate reasons”

14

supported by “substantial evidence in the record” adequate to discount the diagnoses of Dr.

15

Bhardwaj and Dr. Mallah. Carmickle, 533 F.3d at 1164. Cf. Reddick v. Chater, 157 F.3d 715,

16

726 (9th Cir. 1998) (“Dr. Jacobson followed Claimant’s progress for three and a half years,

17

referred her to several specialists and conducted extensive lab testing to rule out other

18

possible illnesses.”). Defendant notes that Plaintiff was treated by Drs. Baddigam and

19

Mohammed, and states that their opinion findings “clearly controverted” those of Dr.

20

Bhardwaj and Dr. Mallah. (Doc. 24 at 8). As discussed below, this statement is true with

21

regards to Plaintiff’s mental state, but neither Dr. Baddigam nor Dr. Mohammed contradicts

22

the diagnosis of lupus, or makes any statement regarding the severity of Plaintiff’s physical

23

symptoms. (R. at 268–70; 323–24). Likewise, Dr. Khan prepared only a psychiatric review

24

and an MRFCA, and made no evaluation of Plaintiff’s physical condition. (R. at 272–85).

25

The only contradicting medical evidence with regards to Plaintiff’s physical condition

26

is the report of Dr. Joh, a non-examining state physician, who stated that Plaintiff can lift ten

27

pounds frequently and twenty pounds occasionally. (R. at 292). He wrote that he based this

28

opinion on “416 of 6-13-08,” a document that is not in the record. (Id.). To the extent that
-7-

1

Dr. Joh’s statement may be construed to mean that he was relying on the June 10, 2008 form

2

SSA-448, that form notes that Plaintiff can cook and do laundry, and states that she “has

3

problems walking kneeling, reaching, standing, bending, squatting and lifting.” (R. at 267).

4

The fact that Plaintiff once reported that she could cook and do laundry4 is not a “specific and

5

legitimate” statement that the person can lift ten pounds frequently and twenty occasionally.

6

Aside from the MRI, the ALJ stated that he discredited her treating physician based

7

on the fact that the same physician had conducted a nerve conduction study and found that

8

her nerve conditions were “within normal limits” in May of 2008. (R. at 31). It is not clear

9

why such a result is inconsistent with the conclusions of the doctor who conducted the study

10

regarding the impact of her lupus on her ability to lift objects. The ALJ stated that Dr. Joh’s

11

report was supported by the fact that Plaintiff’s treating physician noted that Plaintiff had

12

increased range of motion in her lower extremities after “a lumbar facet and sacroiliac joint

13

block injection” in January of 2009. (R. at 31). This improvement took place nearly six

14

months after Dr. Joh’s report, so cannot be used to support his conclusions that Plaintiff

15

could lift twenty pounds occasionally and stand for six out of eight hours on a work shift. (R.

16

at 317).

17

The final reason that the ALJ offers for rejecting Dr. Bhardway and Dr. Mallah’s

18

reports is that they “relied on the claimant’s subjective complaints for their opinions, but did

19

not indicate that they relied on any objective medical evidence.” (R. at 31). In fact, Dr.

20

Bhardway based the diagnosis on “polyarthritis, loss of hair, deep vena thrombosis, positive

21

anticardcolipin antibodies, positive antinuclear antibody and positive double-stranded DNA.”

22

(R. at 332). These symptoms, in particular hair loss, the presence of antibodies, and positive

23

double-stranded DNA, represent objective factors rather than merely subjective complaints.

24

The fact that Plaintiff’s pain and fatigue were self-reported does not offer a substantial reason

25

to discount her treating physician’s diagnosis when it was accompanied by objective medical

26
27
28

4

At the hearing, which took place in August of 2011, she stated that she has not been
able to cook for the past three months. (R. at 67).
-8-

1

evidence. Cf. Reddick, 157 F.3d at 726 (“Although CFS is accompanied by symptoms . . .

2

which Claimant manifested, the presence of persistent fatigue is necessarily self-reported.”).

3

The ALJ’s rejection of Plaintiff’s treating physicians’ physical diagnoses was not

4

supported by substantial evidence in the record.

5

2.

Psychological Symptoms

6

Plaintiff claims that the ALJ erred by discounting the opinion of her therapist, Mr.

7

Gorman. (Doc. 21 at 14). Plaintiff notes that although Mr. Gorman is not an “acceptable

8

medical source,” he is an “other source” under SSR 06-3p. (Doc. 21 at 14). As such, although

9

his opinion cannot establish the existence of an impairment, his opinion “may provide insight

10

into the severity of the impairment(s) and how it affects the individual’s ability to function.”

11

SSR 06-03p, 2006 WL 2329939 (S.S.A. 2006). The ALJ credited Dr. Khan, who examined

12

Plaintiff and found that she “does not appear sad or depressed,” and diagnosed her with

13

“Dysthymic disorder.” (R. at 275–84). He further credited Dr. Baddigam, who also diagnosed

14

her with Dysthymic disorder and provided a guarded prognosis, noting that her thinking

15

process was well-organized and that her “affect is appropriate to the thought content, and her

16

mood is euthymic.” (R. at 269). Although the regulation permits an ALJ to rely on the

17

opinion or an “other source” to determine the severity of an impairment, it does not require

18

it, and the ALJ correctly noted that Mr. Gorman’s opinion was “inconsistent with the record

19

as a whole” including the opinions of two medical sources that personally evaluated Plaintiff.

20

(R. at 32). The ALJ’s decision to credit Dr. Baddigam and Dr. Khan is supported by

21

substantial evidence in the record and is therefore affirmed.

22

B.

23

In evaluating a claimant’s credibility, “the ALJ may use ordinary techniques of

24

credibility evaluation, such as considering the claimant’s reputation for truthfulness and any

25

inconsistent statements in the testimony,” but “must give specific, convincing reasons for

26

rejecting the claimant’s subjective statements.” Tonapetyan v. Halter, 242 F.3d 1144, 1148

27

(9th Cir. 2001) (internal quotations omitted). When a claimant’s testimony is medically

28

supported, the ALJ must also offer specific, clear and convincing reasons before he “can

Evaluation of Plaintiff’s Subjective Complaints

-9-

1

reject the claimant’s testimony about the severity of his symptoms.”

2

Commissioner, 278 F.3d 920, 924 (9th Cir. 2002). This standard is “the most demanding

3

required in Social Security cases.” Id. Here too, the Court will discuss Plaintiff’s physical

4

and psychological symptoms independently.

5

1.

Moore v.

Physical symptoms

6

At her hearing, Plaintiff stated that she had not cooked for three months prior to the

7

hearing, that her hands “crimp up” when she tries to do housework, that she spends six to

8

eight hours a day lying down, that she sleeps only two hours a night, that she cannot lift a

9

gallon of milk, that she uses a cane to walk, and that she can only sometimes bathe and dress

10

without assistance. (R. at 67–72). The ALJ found that “the claimant’s medically determinable

11

impairments could reasonably be expected to cause some of the alleged symptoms” but that

12

Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these

13

symptoms are not credible to the extent they are inconsistent with the above residual

14

functional capacity assessment.” (R. at 33).

15

The ALJ cited a number of reasons for discrediting Plaintiff’s testimony regarding her

16

physical ailments. He first relied upon the MRI in 2009 that showed Plaintiff had no damage

17

to her hips, cervical spine, and lumbar spine. (R. at 33). As noted above, Defendant offers

18

no argument to suggest that the MRI has any bearing on the diagnosis or severity of

19

Plaintiff’s lupus. The ALJ stated that Plaintiff’s testimony at her hearing that she needed a

20

cane was not credible because Plaintiff’s treating physician noted in September of 2008 that

21

an assistive device was not required for ambulation. (R. at 301). That same treating physician

22

prescribed a cane for Plaintiff eight months later, so the earlier diagnosis cannot be used to

23

discredit Plaintiff’s hearing testimony. (R. at 342). The ALJ relied in particular on Plaintiff’s

24

Function Report of April 10, 2008, during which she noted that she cooks breakfast for her

25

daughters and sends them to school. (R. at 177). The Ninth Circuit discourages courts from

26

relying on the fact that claimants can perform domestic tasks to discredit their subjective

27

testimony regarding their symptoms. See Reddick, 157 F.3d at 722. That same report states

28

that after the children leave, Plaintiff will “Lay down from exhaustion” and not get up until
- 10 -

1

“children come home from school.” (R. at 177). Moreover, Plaintiff did not testify that she

2

had never been able to cook for her children; she testified that because of the “crimping” in

3

her hands, she had been unable to cook for the last three months as of the time of her hearing.

4

(R. at 67).

5

Finally, the ALJ discredited Plaintiff’s testimony as to the severity of her condition

6

because “she takes care of four children between the ages of four-years-old and twelve-years-

7

old, which can be quite demanding both physically and emotionally.” (R. at 33). The Ninth

8

Circuit has written that “[s]everal courts, including this one, have recognized that disability

9

claimants should not be penalized for attempting to lead normal lives in the face of their

10

limitations.” Reddick, 157 F.3d at 722. Plaintiff’s earlier report that she gets her children

11

ready for school before lying down from exhaustion until they come home does not

12

contradict her hearing testimony and is not “inconsistent with a need to lie down up to ten

13

hours a day.” (R. at 33). The ALJ improperly discredited Plaintiff’s testimony regarding the

14

severity of her physical symptoms.

15

2.

Psychological Symptoms

16

The ALJ discounted Plaintiff’s claim that she had symptoms of depression every day,

17

her testimony regarding frequent crying spells, and her testimony that she does not like to be

18

around people and isolates herself. (R. at 33). As with the testimony of her treating

19

physicians regarding her psychological symptoms, the ALJ stated that the claims were of

20

diminished persuasiveness in light of the fact that physicians who had examined her provided

21

less severe diagnoses. (R. at 33, 275–84). For purposes of giving a lower regard to Plaintiff’s

22

testimony as to her psychological limitations, the ALJ adequately “identif[ied] what

23

testimony is not credible and what evidence undermines the claimant’s complaints.” Lester

24

v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The ALJ’s decision not to credit Plaintiff’s

25

subjective statements regarding her psychological state was supported by substantial

26

evidence in the record.

27

C.

28

Plaintiff argues that the ALJ’s hypothetical question to the VE was improper because

Hypothetical Questions Posed to the Vocational Expert

- 11 -

1

it failed to account for Dr. Khan’s assessment that Plaintiff has a “moderately limited” ability

2

to accept instructions and respond appropriately to criticism from supervisors. (Doc. 21 at

3

22).5 The ALJ asked the VE to suggest jobs that a person who, “[b]ecause of depression

4

would [be] limited to work involving relatively simple instructions.” (R. at 81). Plaintiff

5

argues that limiting work to relatively simple instructions does not account for her

6

moderately limited ability to accept instruction. (Doc. 21 at 22). “Hypothetical questions

7

posed to the vocational expert must set out all the limitations and restrictions of the particular

8

claimant.” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (emphasis in original)

9

(quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). Nevertheless, the Ninth

10

Circuit has acknowledged that summarizing multiple limitations in an MFRCA with a single

11

limitation in an RFC can be appropriate in some circumstances. For example, in Stubbs-

12

Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008), multiple doctors noted that a

13

claimant operated at a “slow pace” or that the claimant was moderately limited in her ability

14

“to perform at a consistent pace without an unreasonable number and length of rest periods.”

15

The ALJ incorporated these comments, along with others, into an RFC that found “the

16

claimant retains the residual functional capacity to perform simple, routine, repetitive

17

sedentary work, requiring no interaction with the public.” Id. Here, the MRFCA noted that

18

Plaintiff was moderately limited in her ability to carry out detailed instructions, her ability

19

to maintain attention and concentration for extended periods, and her ability to accept

20

instructions and respond appropriately to criticism from supervisors. (R. at 286–87).

21

Summarizing these limitations by finding that the claimant was “limited to work involving

22

relatively simple instructions” accounted for these limitations. See also Landa v. Astrue, 283

23

Fed. Appx. 556, 558 (9th Cir. 2008) (finding that substantial evidence supported an ALJ’s

24

determination that claimant’s “depression was not a sufficiently severe non-exertional

25

limitation that required the assistance of a vocational expert” when the claimant had been

26
27
28

5

Plaintiff also claims the questions were inappropriate because they reflected the
errors alleged and discussed above, which need not be re-evaluated here.
- 12 -

1

found “moderately limited” in two of the twenty categories on an MRFCA).

2

The hypothetical posed by the ALJ did not improperly ignore the findings on Dr.

3

Khan’s MRFCA.

4

III.

Remedy

5

The Court has found that the ALJ improperly rejected medical testimony as to

6

Plaintiff’s physical symptoms and Plaintiff’s own testimony as to the severity of those

7

symptoms. It has found that the ALJ made no error involving Plaintiff’s psychological

8

symptoms. The Court will therefore vacate the ALJ’s decision with regards to the physical

9

symptoms. Having decided to vacate the decision, the Court has the discretion to remand the

10

case either for further proceedings or for an award of benefits. See Reddick, 157 F.3d at 728.

11

The rule in this Circuit is that the Court should:

12

credit[] evidence and remand[] for an award of benefits where
(1) the ALJ has failed to provide legally sufficient reasons for
rejecting [certain] evidence, (2) there are no outstanding issues
that must be resolved before a determination of disability can be
made, and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence
credited.

13
14
15
16

Smolen, 80 F.3d at 1292.

17

Here, the ALJ failed to provide legally sufficient reasons for rejecting the medical

18

evidence regarding Plaintiff’s physical capacity. At the hearing, Plaintiff’s attorney asked the

19

VE if a hypothetical individual subject to the limitations noted in Dr. Bhardwaj’s evaluation

20

would be able to perform work that exists in significant numbers either in the local or the

21

national economy.6 (R. at 84). The VE responded, “I don’t believe so because it appears that

22

would be less than the full range of sedentary work.” (Id.). Were Dr. Bhardwaj’s improperly

23

discounted testimony credited, therefore, the ALJ would be compelled to find that Plaintiff

24

could not perform work available in significant numbers in the national economy. Thus, it

25

is “clear from the record that the ALJ would be required to find the claimant disabled,” and

26
27
28

6

The transcript renders Dr. Bhardwaj’s name phonetically as “Dr. Bardwarsh.” (R.
at 84). It is clear from the context that the parties are referring to Dr. Bhardwaj.
- 13 -

1

there remain no “outstanding issues that must be resolved before a determination of disability

2

can be made.” Smolen, 80 F.3d at 1292. Under these circumstances, the Court will remand

3

for a computation of benefits.

4

CONCLUSION

5

The ALJ improperly discredited Dr. Bhardwaj’s and Dr. Mohammed’s medical

6

evaluations and Plaintiff’s testimony regarding the severity of her symptoms. Since, were

7

that evidence properly credited, the ALJ would have been required to find Plaintiff disabled,

8

the case is remanded for a calculation of benefits.

9
10
11
12

IT IS THEREFORE ORDERED that the ALJ’s decision is vacated.
IT IS FURTHER ORDERED that this case is REMANDED for an award of
benefits.
DATED this 22nd day of June, 2012.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 14 -