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)

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 -