Watkins v. Astrue

Filing 26

ORDER: Defendant's decision denying benefits is reversed. The case is remanded to Defendant for an award of benefits. The Clerk is directed to enter judgment accordingly. Signed by Magistrate Judge Bernardo P Velasco on 6/27/12. (See attached PDF for complete information.) (KAH)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Terri Lynn Watkins, 10 No. CV 11-0282-TUC-BPV Plaintiff, 11 v. 12 ORDER Michael J. Astrue, Commissioner of Social Security, 13 Defendant. 14 15 16 Plaintiff applied for supplemental security income (SSI) on December 21, 2007, 17 alleging disability due to depression, fibromyalgia, and arthritis. Tr. 106-116. The 18 application was denied initially, (Administrative Transcript (Tr.) 51, 53-56), on 19 20 reconsideration, (Tr. 52, 59-62), and after an administrative hearing before an 21 Administrative Law Judge (ALJ) held on April 20, 2009, (Tr. 24-50). The ALJ issued a 22 written decision on February 22, 2010, finding Plaintiff not disabled within the meaning 23 24 of the Social Security Act. Tr. 12-19. This decision became the final decision for 25 purposes of judicial review under 42 U.S.C. § 405(g) when the Appeals Council denied 26 review. Tr. 1. 27 28 Plaintiff now brings this action for review of the final decision of the 1 Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g). The United States 2 Magistrate Judge has received the written consent of both parties, and, accordingly, 3 presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73. 4 5 After considering the record before the Court and the parties’ briefing of the 6 issues, the Court will reverse Defendant’s decision and remand for an immediate award 7 of benefits. 8 I. BACKGROUND 9 10 Plaintiff alleges an onset of disability of December 3, 2003. Plaintiff was born in 11 1961, and was 46 years old as of the date of Plaintiff’s SSI application. Plaintiff dropped 12 out of high school, but received her GED. Plaintiff reported alcohol and drug abuse 13 14 problems from her early teen years, but these had been in remission prior to her alleged 15 onset date. Plaintiff worked most recently as a cashier at a plant nursery, and prior to that 16 at a retail store ordering and stocking merchandise, and helping customers. Plaintiff’s 17 18 onset of depression was coincidental with her decline in physical health, reporting a 19 worsening of symptoms a few years before her alleged onset date. Plaintiff takes 20 fluoxetine for depression, gabapentin, morphine and Roxicet for pain, and promethazine 21 for nausea. 22 23 II. 24 The Court has the “power to enter, upon the pleadings and transcript of the record, 25 STANDARD OF REVIEW a judgment affirming, modifying, or reversing the decision of the Commissioner of Social 26 27 28 Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The court will set aside a denial of benefits only if the Commissioner's findings are based on -2- 1 legal error or are not supported by substantial evidence in the record as a whole. See 42 2 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if 3 supported by substantial evidence, shall be conclusive”); Kail v. Heckler, 722 F.2d 1496, 4 5 1497 (9th Cir. 1984) (citing Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), 6 Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir, 1982)); Smolen v. Chater, 80 F.3d 7 1273, 1279 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 8 “Substantial evidence is such relevant evidence as a reasonable mind might accept as 9 10 adequate to support a conclusion.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 11 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “‘Substantial evidence’ 12 means ‘more than a scintilla,’ but ‘less than a preponderance.’” Smolen, 80 F.3d at 1279 13 14 (quoting Perales, 402 U.S. at 401 and Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 15 (9th Cir. 1975)) (internal citations omitted); see also Bray v. Comm’r of Soc. Sec. Admin., 16 554 F.3d 1219, 1222 (9th Cir. 2009);Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 17 18 III. DISCUSSION 19 Whether a claimant is disabled is determined using a five-step evaluation process. 20 To establish disability, the claimant must show (1) she has not worked since the alleged 21 disability onset date, (2) she has a severe impairment, and (3) her impairment meets or 22 23 equals a listed impairment or (4) her residual functional capacity (RFC) precludes her 24 from performing her past work. At step five, the Commissioner must show that the 25 claimant is able to perform other work. See 20 C.F.R. § 416.920(a). 26 27 28 In her decision, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 21, 2007, the date of application. Tr. 14. At step two, the ALJ -3- 1 found Plaintiff had fibromyalgia and depression, impairments that were “severe” 2 pursuant to the regulations. Tr. 14. At step three, the ALJ found Plaintiff did not have an 3 impairment or combination of impairments that met or medically equaled one of the 4 5 listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 14-15. 6 The ALJ found Plaintiff had the RFC to perform light work with the additional 7 limitation of a sit/stand option, and avoidance of hazards. Tr. 16. The ALJ found that 8 Plaintiff’s pain and depression both were controlled by medication without significant 9 10 adverse side effects. At step four, the ALJ found Plaintiff was unable to perform her past 11 relevant work as a stock department head. Tr. 18. The ALJ considered testimony by a 12 vocational expert in making a determination that there are jobs in the national economy 13 14 15 16 that Plaintiff could perform. Tr. 18. Therefore, the ALJ found Plaintiff was not disabled since December 21, 2007. Tr. 19. Plaintiff argues that the ALJ erred by (1) failing to properly assess the relative 17 18 weight of the medical evidence, particularly by failing to give controlling weight to the 19 opinion of the only treating specialist, in determining Plaintiff’s RFC; and (2) violating 20 SSR 00-4p by failing to inquire of the vocational expert if her testimony was consistent 21 with the Dictionary of Occupational Titles (DOT). Plaintiff contends that the Court 22 23 should exercise its discretion to reverse and remand for a finding of disability, or, 24 alternatively, for further administrative proceedings. 25 The Commissioner responds, arguing that the ALJ 1) provided specific and 26 27 28 legitimate reasons for not affording significant weight to the treating specialist; 2) provided specific, clear and convincing reasons for finding that Plaintiff’s subjective -4- 1 complaints were not credible; 3) performed a proper assessment of Plaintiff’s RFC; 4) 2 substantial evidence supports the ALJ’s finding that Plaintiff could perform work which 3 exists in significant numbers in the national economy. Defendant in the record as a whole 4 5 6 7 8 supports the ALJ’s decision that Plaintiff was not disabled, and that if the Court finds error, such error would not warrant remand for payment of benefits. A. Step Four: Residual Functional Capacity Determination The ALJ found Plaintiff had the RFC to perform light work with the additional 9 10 limitation of a sit/stand option, and avoid hazards. Tr. 16. In doing so, the ALJ gave 11 “some weight” to the opinion of the State Agency reviewer John B. Kurtin, “some 12 weight” to Plaintiff’s treating physician Dr. Iannini regarding environmental limitations 13 14 15 16 and Plaintiff’s need to alternate positions, gave “great weight” to the psychological consultative examiner, and found Plaintiff to be not credible. The ALJ found that, “[t]he claimant’s pain in her joints, neck, back, elbows, 17 18 hands, knees, ankle, abdomen and hips are moderate but are controlled by appropriate 19 medication without significant adverse side effects.” Tr. 16. The ALJ also stated that 20 “[t]he claimant’s depression is moderate but is controlled by appropriate medication 21 without significant adverse side effects.” Tr. 16. 22 23 Plaintiff argues that the ALJ erred in failing to give controlling weight to the 24 opinion of the only treating specialist and ignored evidence of significant limitations in 25 activities of daily living.1 The Commissioner responds that the ALJ provided specific and 26 27 1 28 Plaintiff does not contend, as the Commissioner responds, that the ALJ improperly discredited Plaintiff’s testimony. Accordingly, the Court reviews Plaintiffs -5- 1 legitimate reasons for not affording significant weight to the treating specialist, provided 2 specific, clear and convincing reasons for finding that Plaintiff’s subjective complaints 3 were not credible and performed a proper assessment of Plaintiff’s RFC that is supported 4 5 6 7 8 by substantial evidence and free of harmful legal error. 1. Evaluation of Medical Source Opinions a. Treating Rheumatologist Dr. Iannini The ALJ found that Dr. Iannini did not provide any objective evidence to support 9 10 his opinion that Plaintiff can sit, stand, or walk less than 2 hours in an 8-hour workday, 11 lift and carry less than 10 pounds, has markedly limited ability for handling, and needs to 12 be able to lie down during the day. Tr. 16 The ALJ did adopt Dr. Iannini’s opinion that 13 14 Plaintiff is restricted from working around heights or moving machinery, and driving or 15 operating machinery. Tr. 16 The ALJ also found that Plaintiffs activities of daily living 16 reflect that she is capable of performing at a higher exertional level than Dr. Iannini 17 18 indicated. Tr. 16. 19 Treating physician’s opinions are given great weight based on the fact that they 20 are employed to cure, and also on their greater opportunity to observe and know the 21 patient as an individual. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Thus, "the 22 23 ALJ may only reject a treating or examining physician's uncontradicted medical opinion 24 based on 'clear and convincing' reasons.' " Carmickle v. Commissioner, 533 F.3d 1155, 25 1164 (9th Cir. 2008) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). Clear 26 27 28 testimony only for evidence to support the ALJ’s contention that Plaintiff’s activities of daily living reflect that she is capable of performing work at a higher exertional level than Dr. Iannini indicated. -6- 1 and convincing reasons are also required to reject a treating doctor’s ultimate 2 conclusions. Lester, 81 F.3d at 830 (citing Embry v. Bowen, 849 F.2d 418, 422(9th Cir. 3 1988)). Where such an opinion is contradicted, it may be rejected for specific and 4 5 legitimate reasons that are supported by substantial evidence in the record. Carmickle, 6 533 F.3d at 1164 (citing Murray, 722 F.2d at 502). When rejecting the opinion of a 7 treating physician, the ALJ can meet this " 'burden by setting out a detailed and thorough 8 summary of the facts and conflicting clinical evidence, stating [her] interpretation 9 10 thereof, and making findings.' " Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 11 2008)(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The Social 12 Security Administration has explained that an ALJ's finding that a treating source 13 14 medical opinion is not well-supported by medically acceptable evidence or is inconsistent 15 with substantial evidence in the record means only that the opinion is not entitled to 16 controlling weight, not that the opinion should be rejected. Orn, 495 F.3d 625, 632 (9th 17 18 Cir. 2007) (citing 20 C.F.R. § 404.1527). Treating source medical opinions are still 19 entitled to deference and, “[i]n many cases, will be entitled to the greatest weight and 20 should be adopted, even if it does not meet the test for controlling weight." Orn, 495 F.3d 21 at 632; see also Murray, 722 F.2d at 502 ("If the ALJ wishes to disregard the opinion of 22 23 the treating physician, he or she must make findings setting forth specific, legitimate 24 reasons for doing so that are based on substantial evidence in the record."). 25 Here, Dr. Iannini’s opinion was contradicted by the opinion of consultative 26 27 28 examiner John Kurtin. See Tr. 209-16. As noted by Plaintiff, there is no indication in the record of whether John Kurtin is a licensed medical doctor or his field of expertise or -7- 1 practice. Tr. 216. The “Medical Consultant’s Code Section” of the document has been 2 left blank. Id. The ALJ referred to this evidence as being provided by the State Agency, 3 rather than a licensed medical doctor. Medical consultant, John Fahlberg, MD., affirmed 4 5 the “initial light RFC,” but did not indicate what medical evidence, if any, he reviewed in 6 reaching this conclusion. “The opinion of a nonexamining physician cannot by itself 7 constitute substantial evidence that justifies the rejection of the opinion of either an 8 examining physician or a treating physician.” Lester, 81 F.3d at 831; see also Ryan v. 9 10 Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1202 (9th Cir. 2008). Though the Court finds 11 that, in this case, the medical consultants’ opinions do not constitute substantial evidence 12 to justify rejecting Dr. Iannini’s opinion, in and of themselves, they do establish the 13 14 existence of a contradictory opinion that determines the burden the ALJ must meet in 15 rejecting Dr. Iannini’s opinion; the ALJ must offer specific and legitimate reasons 16 supported by substantial evidence to reject Dr. Iannini’s opinion. 17 18 The first reason the ALJ provides for rejecting Dr. Iannini’s opinion is not 19 legitimate. The Court finds that it was error for the ALJ to give Dr. Iannini’s opinion less 20 than controlling weight on the basis of the lack of objective evidence to support his 21 opinion. Fibromyalgia “causes inflammation of the fibrous connective tissue components 22 23 of muscles, tendons, ligaments and other tissues.” Benecke v. Barnhart, 379 F.3d 587, 24 589 (9th Cir. 2004) (citations omitted). Common symptoms of fibromyalgia include 25 chronic pain throughout the body, multiple tender points, fatigue, stiffness, and sleep 26 27 28 disturbance. Id. at 589-590. “Fibromyalgia’s cause is unknown, there is no cure, and it is poorly-understood within much of the medical community.” Benecke, 379 F.3d at 590. -8- 1 See also Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (fibromyalgia is “a common, 2 but elusive and mysterious disease...”) Fibromyalgia “is diagnosed entirely on the basis 3 of patients’ reports of pain and other symptoms.” Benecke, 379 F.3d at 590. Although 4 5 “[t]he American College of Rheumatology issued a set of agreed upon diagnostic criteria 6 in 1990,...there are no laboratory tests to confirm the diagnosis.” Id. With regard to 7 Plaintiff’s fibromyalgia, the ALJ erred in effectively requiring “objective evidence for a 8 disease that eludes such measurement.” Green-Younger v. Barnhart, 335 F.3d 99, 108 9 10 (2nd. Cir. 2003) (reversing and remanding for an award of benefits where the plaintiff was 11 disabled by fibromyalgia).” Benecke, 379 F.3d at 594. See also Rogers v. Comm’r. of 12 Soc. Sec., 486 F.3d 234 (6th Cir. 2007) (rejecting ALJ’s credibility finding where, inter 13 14 alia, the ALJ cited lack of objective medical evidence and that Plaintiff exhibited normal 15 reflexes and normal sensory testing because “the nature of fibromyalgia itself 16 renders...over-emphasis upon objective findings inappropriate.”) (citing Canfield v. 17 18 Comm’r. of Soc. Sec., 2002 WL 31235758 (E.D. Mich. Sept. 13, 2002) (it would be 19 “nonsensical to discount a fibromyalgia claimant’s subjective complaints of pain based 20 upon lack of objective medical evidence, as such evidence is generally lacking with 21 fibromyalgia patients.”); Sarchet, 78 F.3d at 307 (recognizing that the absence of 22 23 objective evidence of fibromyalgia such as swelling of the joints “is no more indicative 24 that the patient’s fibromyalgia is not disabling than the absence of headache is an 25 indication that a patient’s prostate cancer is not advanced.”). Given that no objective tests 26 27 28 can conclusively confirm the disease, the lack of abnormal tests does not undermine Dr. Iannini’s opinion. -9- 1 The ALJ’s second reason for rejecting Dr. Iannini’s opinion, that Plaintiff’s 2 activities of daily living reflect that she is capable of performing work at a higher level 3 than Dr. Iannini has indicated, could, however, be a legally sufficient basis on which to 4 5 reject the treating physician’s testimony if supported by substantial evidence. See 20 6 C.F.R. § 404.1527 (c)(4)(Consistency of medical opinion with the record as a whole is 7 one of several factors considered in deciding the weight to give to any medical opinion); 8 See also Magallanes, 881 F.2d at 754 (Conflicts between treating physician’s opinion and 9 10 claimant’s own testimony properly considered by ALJ in rejecting treating physician’s 11 opinion in favor of that offered by non-treating, non-examining physician); Morgan v. 12 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601–02 (9th Cir. 1999)(upholding rejection of 13 14 15 16 physician's conclusion that claimant suffered from marked limitations in part on basis that claimant's reported activities of daily living contradicted that conclusion); To the extent that the ALJ rejected Dr. Iannini’s opinion because it was 17 18 inconsistent with Plaintiff’s reports of activities of daily living, the ALJ relied on Dr. 19 Iannini’s treatment note reporting that Plaintiff was “performing all activities of daily 20 living and remains active, caring for 30 horses a day,” from October, 2006, prior to the 21 date of Plaintiff’s application for SSI. While Plaintiff suggests that this remark was, at 22 23 best, an outlier, and possibly a typographical error, Dr. Iannini’s report dispels any notion 24 that it was a typographical error by reporting in September, 2008 that Plaintiff was no 25 longer able to work at the horse stables. Tr. 329. This report also refutes the ALJ’s 26 27 28 reliance on an apparent conflict between Plaintiff’s ability to care for horses, which took place prior to the date of Plaintiff’s applications, and Dr. Iannini’s opinions regarding her - 10 - 1 limitations after the date of application, because Dr. Iannini’s RFC assessment was 2 completed on August 5, 2009, after Dr. Iannini’s treatment notes indicated Plaintiff was 3 no longer able to care for the horses. 4 5 The ALJ identified further conflicts between Plaintiff’s testimony of her own 6 limitations and Dr. Iannini’s opinion. The ALJ noted that Plaintiff stated she does all the 7 housekeeping, goes shopping, and pumps her own gasoline, is able to do the laundry, 8 dishes, and dusting, and enjoys reading, watching TV and playing Sudoko. Plaintiff, 9 10 qualified her ability to do almost all of these activities, however, with significant 11 durational limitations. Though Plaintiff does housekeeping and laundry, she does it only 12 when she “feel[s] good enough, maybe once a week,” and works “no longer than an hour 13 14 at a time” and her son “helps with everything.” Tr. 119. Though she reads and watches 15 television, she “usually fall[s] asleep while doing these.” Tr. 121. She cooks or prepares 16 meals, but only for “minutes” and no longer has “the energy to prepare an entire meal.” 17 18 Tr. 119. These activities, which demonstrate that Plaintiff is capable of performing 19 activities of daily living, but not of any sustained duration, do not necessarily conflict 20 with Dr. Iannini’s opinion, which indicated that she is able to perform activities involving 21 sitting, standing and walking less than 2 hours in an 8-hour workday and with restrictions 22 23 involving the ability to lift and carry, as well as handle, and limitations requiring Plaintiff 24 to lie down during the day, and to alternate sitting and standing every hour. Thus, 25 Plaintiff’s testimony as to her own limitations reflect she is capable of performing work 26 27 28 at a higher exertional level than Dr. Iannini indicated only if claimant’s testimony regarding how long she is able to persevere in these activities is ignored. Here, the ALJ - 11 - 1 failed to evaluate Plaintiff’s “ability to work on a sustained basis.” Lester, 81 F.3d at 833 2 (quoting 20 C.F.R. § 404.1512(a)). “Occasional symptom-free periods-and even the 3 sporadic ability to work-are not inconsistent with disability.” Id. (citing Leidler v. 4 5 Sullivan, 885 F.2d 291, 292 n. 3 (5th Cir.1989); Poulin v. Bowen, 817 F.2d 865, 875 6 (D.C.Cir.1987)). Neither are Plaintiff’s reports of sporadic activity inconsistent with Dr. 7 Iannini’s consideration of Plaintiff’s ability to perform work on a sustained basis. 8 Accordingly, the undersigned finds that the ALJ’s stated reasons for giving little 9 10 weight to Dr. Iannini’s opinion is neither legitimate, nor supported by substantial 11 evidence in the record. Furthermore, the ALJ's decision indicates that he did not consider 12 all of the factors set forth in 20 C.F.R. § 404.1527(c)(2)-(6). Though the ALJ’s 13 14 consideration of Plaintiff’s activities of daily living that may contradict Dr. Iannini’s 15 opinion are appropriately considered in determining the weight that should be given to 16 Dr. Iannini’s opinion. 20 C.F.R. § 404.1527(c)(4), it is not the only factor to be 17 18 considered. Determination of the weight to afford Dr. Iannini's opinion requires 19 consideration of (1) the frequency of examination and the length, nature, and extent of the 20 treatment relationship; (2) the evidence in support of Dr. Iannini's opinion; (3) the 21 consistency of the opinion and the record as a whole; (4) whether Dr. Iannini is a 22 23 specialist, and; (5) other factors that would support or contradict Dr. Iannini's opinion. 20 24 C.F.R. § 404.1527(c)(2)-(6). 25 The only rheumatologist to examine Plaintiff2, Dr. Iannini had diagnosed Plaintiff 26 27 2 28 Rheumatology is the relevant specialty for fibromyalgia. Benecke, 379 F.3d at 594, n.4. A “rheumatologist's opinion is given greater weight than those of ... other - 12 - 1 at the latest by October, 2006 and treated her through at least the date of the hearing 2 before the ALJ. In detailed treatment notes, he documented, the findings of Plaintiff’s 3 physical examinations, including positive examination for multiple tender points, 4 5 Plaintiff’s reports about her symptoms3, his observations of same, and Plaintiff’s 6 responses to various medication, supplements and treatments. He prescribed an array of 7 medications, administered trigger point injections, and referred Plaintiff to a nurse 8 practitioner for further treatment and injections of her knees with Synvisc. 9 10 When all factors are considered, the Court finds that the ALJ has not set forth 11 specific and legitimate reasons supported by substantial evidence to reject Dr. Iannini's 12 opinion. Dr. Iannini's opinion, therefore, is credited as a matter of law. 13 14 2. Vocational Expert Testimony 15 Plaintiff argues that the ALJ violated SSR 00-4p by failing to inquire of the 16 vocational expert if her testimony was consistent with the Dictionary of Occupational 17 18 Titles (DOT). The Ninth Circuit has made clear that if a conflict exists between the VE's 19 testimony and the DOT, “the ALJ must ... determine whether a basis exists for relying on 20 the expert rather than the [DOT].” Massachi v. Astrue, 486 F.3d. 1149, 1153 (9th Cir. 21 2007). An ALJ has an affirmative responsibility to ask about any possible conflict 22 23 24 25 26 27 28 physicians because it is an ‘opinion of a specialist about medical issues related to his or her area of specialty.’ ” Id. (quoting 20 C.F.R. § 404.1527). Specialized knowledge is “particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community.” Id 3 A “patient's report of complaints or history[ ] is an essential diagnostic tool.” Green-Younger, 335 F.3d at 107; see also Reddick v. Chater, 157 F.3d 715, 726 (9th Cir.1998) (disagreeing with ALJ's rejection of physician's opinion for relying on subjective complaints because chronic fatigue syndrome is primarily evaluated on the basis of plaintiff's subjective complaints). - 13 - 1 between evidence provided by the vocational expert and information provided in the 2 DOT. Id. If so, the ALJ must inquire whether there is a reasonable explanation for the 3 conflict. Id. at 1153-54. Failing to make such an inquiry is error. Such procedural error 4 5 can be harmless, however, if there is no conflict, or if the vocational expert provides 6 sufficient support for her conclusion so as to justify any potential conflict. Id. at 1154, 7 n.19. 8 Here, the ALJ failed to make the required inquiry. Plaintiff, however, has failed to 9 10 demonstrate any conflict between the vocational expert’s testimony and the DOT. “[T]he 11 burden of showing that an error is harmful normally falls upon the party attacking the 12 agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations 13 14 omitted). Plaintiff has not met her burden of demonstrating harm or prejudice. 15 Accordingly, the Court finds any error by the ALJ to inquire of potential conflicts in the 16 vocational expert’s testimony harmless in this instance. 17 18 IV. APPROPRIATE REMEDY ON REMAND 19 Plaintiff argues that the appropriate remedy is to remand the case for an award of 20 benefits. The decision to remand for further development of the record or for an award of 21 benefits is within the discretion of the Court. 42 U.S.C. § 405(g); see Harman v. Apfel, 22 23 211 F.3d 1172, 1173-74 (9th Cir. 2000). “Where the Commissioner fails to provide 24 adequate reasons for rejecting the opinion of a treating or examining physician, we credit 25 that opinion ‘as a matter of law.’” Lester, 81 F.3d at 834; Harman, 211 F.3d at 1178 26 27 (same); Benecke, 379 F.3d at 594 (“Because the ALJ failed to provide legally sufficient 28 - 14 - 1 2 reasons for rejecting Benecke's testimony and her treating physicians' opinions, we credit the evidence as true.”). 3 This Circuit has held that an action should be remanded for an award of benefits 4 5 where the ALJ has failed to provide legally sufficient reasons for rejecting evidence, no 6 outstanding issue remains that must be resolved before a determination of disability can 7 be made, and it is clear from the record that the ALJ would be required to find the 8 claimant disabled were the rejected evidence credited as true. See, e.g., Varney v. Sec’y of 9 10 HHS, 859 F.2d 1396, 1400 (9th Cir. 1988) (Varney II). 11 12 The ALJ improperly rejected Dr. Iannini’s opinion that Plaintiff could work less than 2 hours in an 8-hour day. The vocational expert testified that Iannini’s residual 13 14 functional capacities equate to less than full-time work and less than sedentary work, and 15 therefore there would be no jobs in the national economy that Plaintiff could perform if 16 Dr. Iannini’s opinions were controlling. Tr. 49. 17 The Court concludes that Dr. Iannini’s opinion should have been credited. 18 19 Because it is clear that the ALJ would be required to find Plaintiff disabled if Dr. 20 Iannini’s opinion is credited, see Benecke, 379 F.3d at 593-95, the Court will remand the 21 case for an award of benefits. See Orn, 495 F.3d at 640 (remanding for an award of 22 23 benefits where it was “‘clear from the record that the ALJ would be required to determine 24 the claimant disabled’”) (citation omitted). A remand for further proceedings is not 25 warranted. 26 27 28 // // - 15 - 1 Accordingly, 2 IT IS ORDERED: 3 1. Defendant’s decision denying benefits is reversed. 2. The case is remanded to Defendant for an award of benefits. 6 3. The Clerk is directed to enter judgment accordingly. 7 Dated this 27th day of June, 2012. 4 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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