Coelho v. Astrue

Filing 23

ORDER, Carolyn W. Colvin, Acting Commissioner of Social Security, is substituted as Respondent for Michael Astrue. Plaintiff's Opening Brief(Doc.16) is granted; granting in part and denying in part 19 Motion to Remand to Social Securtiry. The Commissioner's decision is REVERSED and REMANDED for calculation and award of benefits; and The Clerk of the Court shall enter judgment, and close its file in this matter.. Signed by Magistrate Judge Bruce G Macdonald on 9/11/2013.(JKM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin,
Acting Commissioner of Social Security, )
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Defendant.
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Richard Alex Coelho,

No. CV-12-0328-TUC-BGM

ORDER

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Currently pending before the Court is Defendant’ Motion to Remand (Doc. 19). A

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response has been filed, but no reply. Plaintiff brings this cause of action for review of the

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final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). The

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United States Magistrate Judge has received the written consent of both parties, and presides

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over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure.

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The Court takes judicial notice that Michael J. Astrue is no longer Commissioner of the

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Social Security Administration (“SSA”).

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Commissioner of the SSA, Carolyn W. Colvin, as Defendant pursuant to Rule 25(d) of the

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Federal Rules of Civil Procedure.

The Court will substitute the new Acting

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I.

BACKGROUND

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A.

Procedural History

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On January 29, 2007, Plaintiff filed an application for Social Security Disability

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Insurance Benefits (“DIB”) alleging disability as of January 3, 2007 due to a myocardial

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infarction, coronary artery disease, sleep apnea/upper airway resistance syndrome,

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depression, anxiety, high blood pressure, and gastrointestinal problems. See Administrative

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Record (“AR”) at 12, 81, 148, 196, 219, 223, 257. The Social Security Administration

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(“SSA”) denied this application on July 26, 2007. Id. at 81, 93. Plaintiff filed a request for

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reconsideration, and on January 25, 2008, SSA denied Plaintiff’s request. Id. at 81, 101. On

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February 26, 2008, Plaintiff filed his request for hearing. Id. at 81, 104. On February 24,

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2009, a hearing was held before Administrative Law Judge (“ALJ”) Norman R. Buls. Id. at

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81; Suppl. AR at 1-28. The ALJ issued an unfavorable decision on April 27, 2009. AR at

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78-88. Plaintiff requested review of the ALJ’s decision by the Appeals Council, review was

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granted, and on May 18, 2010, the Appeals Council remanded the case back to an ALJ. Id.

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at 89-92, 148-53. Upon remand, a supplemental hearing was held on October 26, 2010

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before ALJ Norman R. Buls. Id. at 36-74. On January 5, 2011, ALJ Buls issued his Notice

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of Decision, denying Plaintiff benefits. Id. at 9-22. On February 2, 2011, Plaintiff requested

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appellate review, which was denied. Id. at 1-4, 190. Plaintiff filed this cause of action on

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April 30, 2012. Compl. (Doc. 1). In response to Plaintiff’s Opening Brief (Doc. 16) filed

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on September 14, 2012, the Commissioner filed her Motion to Remand (Doc. 19).

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B.

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Plaintiff was fifty-three (53) years old at the time of the supplemental administrative

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hearing, and forty-nine (49) at the time of the alleged onset of his disability. AR at 39, 196.

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Plaintiff possesses a high school education and attended two years of college at the time of

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his alleged onset. Id. at 39. Prior to his alleged disability, Plaintiff worked for Raytheon

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Missile Systems for twenty-six (26) years. Id. at 68, 164, 210, 224, 234, 239.

Factual History

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At the supplemental administrative hearing, Plaintiff testified that prior to the

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termination of his employment with Raytheon, he was exhausted and unable to focus. AR

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at 45. Plaintiff further testified that he no longer has “a desire to be involved in things.” Id.

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at 47. Plaintiff testified that on a typical day he will “get up about three in the afternoon[,]”

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and go to bed “[a]nywhere from ten to midnight.” Id. at 47. During his waking hours,

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Plaintiff testified that he watches television and may cook, wash dishes and make the bed.

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Id. at 47-8. Plaintiff further testified that he “started to get into watercolor painting,” but has

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not painted in approximately a year. Id. at 48. Plaintiff also testified that he enjoys reading,

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and used to garden, but currently does not have any other hobbies and does not exercise. AR

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at 48-9. Plaintiff testified that he drinks approximately twenty (20) to thirty (30) beers per

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week. Id. at 49.

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Plaintiff testified that he had recently seen his cardiologist, and a change in the size

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of his aorta was discovered. Id. at 50. Plaintiff further testified that he was expecting to have

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a CT scan to determine how large his aorta had become, as well as for his stomach issues.

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Id. at 50-1.

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Regarding his previous employment at Raytheon Missile Systems, Plaintiff testified

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that during his last year there he missed more work than was authorized, approximately thirty

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(30) days. AR at 52. Plaintiff further testified that his job as a section manager at Raytheon

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required him to lift up to fifty (50) pounds at least three (3) times per week. Id. at 53.

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Plaintiff testified that his exhaustion goes beyond being tired, but that “it is a fuzziness with

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how you see . . . things.” Id. at 55. Plaintiff also testified that his sleep apnea contributes to

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his exhaustion. Id. at 56.

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Regarding his emotional issues, Plaintiff testified that he used to enjoy painting,

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gardening and golf, but he no longer has any interest in these things. Id. at 57. Plaintiff

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further testified that although he used to love to golf, he has stopped playing due to a lack of

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motivation. AR at 51-2. Plaintiff testified that he participates in only two benefit golf

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tournaments per year. Id. at 47. Plaintiff further testified that it is likely that he is depressed,

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and that he currently takes the anti-depressant Celexa. Id. at 57-8. Plaintiff also testified that

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he has problems with anxiety, and that this has been an issue since his heart attack. Id. at 58.

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Plaintiff testified that these issues also affected his desire and ability to work. Id. at 59;

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Suppl. AR at 7.

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Ms. Tracy Young, a vocational expert, also testified at the administrative hearing. AR
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at 61. Ms. Young testified that she would categorize Plaintiff’s job at Raytheon as a machine

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shop supervisor, DOT number 600.130-010, a medium, very skilled position. Id. at 62. Ms.

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Young further testified that alternatively, she would categorize Plaintiff as a production

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planner, based on his previous work experience, which is a light, skilled position. Id. at 62.

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Ms. Young identified Plaintiff as having skills, including scheduling, planning, supervising,

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training, resolving problems, and mediation; however, she noted that his tenure with

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Raytheon and lack of a college degree may limit the transferability of those skills to a highly

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skilled position. Id. at 64. Accordingly, the ALJ asked Ms. Young, hypothetically, whether

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an individual of claimant’s age, education and work background with physical limitations

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including occasionally lifting twenty (20) pounds, frequently lifting ten (10) pounds, stand

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and walk with normal breaks for a total of six hours in an eight hour work day, sit with

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normal breaks for a total of six hours in an eight hour work day, and without limitation of

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pushing and pulling other than per lifting and carrying, and no postural or manipulative

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limitations, no visual limitations, no communicative limitations, and the individual must

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avoid moderate exposure to hazards, such as machinery and heights, and mentally has

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moderate limitations in the ability to make judgements on complex work-related decisions

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and to respond appropriately to usual work situations and to changes in a routine work

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setting, would be able to perform any past relevant work of Plaintiff. Id. at 64-5. Ms. Young

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opined that the physical limitations would preclude him from performing the medium job of

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machine shop supervisor. AR at 65.

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Plaintiff’s counsel questioned Ms. Young regarding his treating physician, Dr.
Talalaev’s opinion, that Plaintiff:
can work four hours a day, four days per week. That he could stand for 20
minutes and sit for 40 minutes. That the standing would be up to 1.3 hours out
of a day; sitting would be 3.7 total hours in a day; could walk for 20 minutes.
He would need to change positions frequently. That he would probably miss
three work days per month as a result of disability. He could ride in a vehicle
one hour at a time, 2 total hours in a day. Could occasionally, bend, crouch,
kneel, and squat. Could frequently sit in a clerical position; occasionally reach
above shoulder level and occasionally work with arms extended in front.

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Id. at 66. Based on these physical restrictions, Ms. Young agreed that Plaintiff could not do

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any form of his past work. Id. She further agreed that there would be no other jobs existing

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in reasonable numbers in the national economy that Plaintiff could perform. Id. at 67.

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Plaintiff’s counsel also asked Ms. Young a hypothetical regarding Plaintiff’s mental

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limitations as reported by examining psychiatrist Dr. Rohen, diagnosing a major depressive

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disorder, and moderate limitations in Plaintiff’s ability to complete a normal work day or

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week, to perform at a consistent pace without an unreasonable number and length of rest

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periods, to perform activities with a schedule, maintain regular attendance, and be punctual

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within customary tolerances, coupled with his ability to occasionally lift twenty-five (25)

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pounds and frequently ten (10) pounds. Id. at 67. Based upon this information, Ms. Young

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opined that the combination would preclude Plaintiff from doing the kind of work he had

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previously done and preclude him from any other kind of work that exists in reasonable

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numbers in the national economy. AR at 67-8.

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Pursuant to request by the Arizona Department of Economic Security (“AZDES”),

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Plaintiff was examined by Dennis Thrasher, M.D. Id. at 590-600. Plaintiff saw Dr. Thrasher

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on August 9, 2010. Id. at 590. Dr. Thrasher reviewed Plaintiff’s medical records,

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interviewed him and performed a physical examination. Id. at 590-600. Dr. Thrasher’s

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assessment indicated a history of coronary artery disease, with current complaints of

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excessive fatigue, obstructive sleep apnea, Barrett’s esophagitis and chronic dyspepsia, and

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depression and anxiety. Id. at 592. Dr. Thrasher found that Plaintiff could lift and carry up

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to ten (10) pounds continuously, up to twenty (20) pounds frequently and up to fifty (50)

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pounds occasionally. AR at 594. In an eight (8) hour work day, Dr. Thrasher found that

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Plaintiff could sit for six (6) hours, stand for two (2) hours and walk for one (1) hour. Id. at

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595. Dr. Thrasher also found some limitation in Plaintiff’s ability in reaching and pushing

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or pulling. Id. at 596. Dr. Thrasher further found that Plaintiff could frequently stoop,

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occasionally climb stairs and ramps, balance, kneel, crouch and crawl, and never climb

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ladders or scaffolds. Id. at 597. Dr. Thrasher additionally found that Plaintiff could

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frequently tolerate moving mechanical parts; occasionally tolerate operating a motor vehicle,

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humidity and wetness, and vibrations; and never tolerate unprotected heights, dust, odors,

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fumes, and pulmonary irritants or extreme cold or heat. AR at 598.

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Plaintiff’s records were reviewed by state agency physician Michael Maximov, M.D.

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Id. at 381. Dr. Maximov determined that Plaintiff could occasionally lift and/or carry up to

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twenty (20) pounds, frequently lift and/or carry up to ten (10) pounds, stand and/or walk

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(with normal breaks) for a total of about six (6) hours in an eight (8) hour work day and sit

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(with normal breaks) for a total of about six (6) hours in an eight (8) hour work day. Id. at

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381. Dr. Maximov limited Plaintiff’s ability to push and/or pull only to the degree that he

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was limited in carrying or lifting. Id. Dr. Maximov did not find any postural, manipulative,

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visual or communicative limitations for Plaintiff. Id. at 382-4. Dr. Maximov determined

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Plaintiff should avoid concentrated exposure to extreme heat and extreme cold and should

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avoid even moderate exposure to hazards such as machinery and heights. AR at 384. Dr.

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Maximov stated that Plaintiff’s “fatigue appears more likely related to depression, untreated

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sleep apnea, deconditioning, alcoholism or excessive sleep rather than to CAD, Barrett’s

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esophagus, or hyperlipidemia.” Id. at 385. Pursuant to request by the Commissioner, Jerry

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L. Dodson, M.D., reviewed the records in this case. Id. at 116. Dr. Campbell affirmed the

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Residual Functional Capacity assessment of Dr. Maximov. Id.

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Pursuant to request by AZDES, Plaintiff was referred for evaluation by Noelle Rohen,

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Ph.D. and examined on July 2, 2007. Id. at 388. Dr. Rohen reviewed Plaintiff’s medical

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records provided by Disability Determination Services, performed a clinical interview and

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mini-mental state examination. Id. at 388. Dr. Rohen diagnosed Plaintiff with major

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depressive disorder and anxiety disorder, not otherwise specified. Id. at 390-91. She

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deferred to Plaintiff’s medical records regarding physical diagnoses. Id. Dr. Rohen noted

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that Plaintiff’s “[d]epression has been chronic despite treatment and is likely to persist unless

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treatment is adjusted, and can be expected to impact him in the workplace via its contribution

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to attendance problems and slowed performance.” AR at 390-91.

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On July 25, 2007 Plaintiff was examined by Andres Kerns, Ph.D.1 Id. at 397-414.

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Dr. Kerns performed a Mental Residual Functional Capacity Assessment and determined that

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Plaintiff was moderately limited in his ability to perform activities within a schedule,

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maintain regular attendance and be punctual within customary tolerances, as well as his

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ability to complete a normal workday and workweek without interruptions from

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psychologically based symptoms and to perform at a consistence pace without an

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unreasonable number and length of rest periods. Id. at 397-98. Dr. Kerns diagnosed Plaintiff

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with a depressive disorder and anxiety disorder, not otherwise specified. Id. at 404, 406. Dr.

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Kerns found Plaintiff to be moderately limited in his ability to maintain concentration,

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persistence, or pace. Id. at 411. Pursuant to request by the Commissioner, Eugene Campbell,

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Ph.D. reviewed the records in this case. AR at 415. Dr. Campbell affirmed Dr. Kerns’s

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Psychiatric Review Technique Form (“PRTF”) and Mental Residual Functional Capacity

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(“MRFC”) form decision. Id.

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Plaintiff was also examined by Kathleen V. Prouty, Ph.D. on July 30, 2010.2 Id. at

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585-89.

Dr. Prouty reviewed Plaintiff’s medical records provided by Disability

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Determination Services, performed a clinical interview and mini-mental state examination.

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Id. at 585. Dr. Prouty determined that Plaintiff’s basic cognitive and memory function is

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grossly intact. Id. at 586. Regarding Plaintiff’s alcohol consumption, Dr. Prouty stated this

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“can contribute to changes in his moods and behaviors.” AR at 586. Moreover, she stated

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that Plaintiff “has limited insight into his alcohol use and its effects on his physical and

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mental well-being.” Id. The ALJ relied on Dr. Prouty’s finding in his decision. Id. at 16.

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Plaintiff’s treating physician, Yuri Talalaev, M.D., determined that Plaintiff could

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It appears that Dr. Kerns examined Plaintiff at the request of the Commissioner; however,
his report does not state so explicitly. It is also unclear whether Dr. Kerns performed an in-person
examination or a records review.
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It appears that Dr. Prouty’s examination took place at the request of the Commissioner;
however, her report does not state so explicitly.

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perform sedentary work part-time, for four (4) hours of an eight (8) hour day, but could not

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perform any form of light, medium or heavy work. Id. at 629. Dr. Talalaev further

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determined that during the work day, Plaintiff could stand for twenty (20) minutes at a time

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for a total of 1.3 total hours and sit for forty (40) minutes at a time for 3.7 total hours. Id.

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Dr. Talalaev also stated that frequent position changes would be necessary. AR at 629.

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Furthermore, Dr. Talalaev found Plaintiff could not climb either ladders or stairs, and would

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be expected to miss an average of three (3) workdays per month as a result of his disability

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and normal illness. Id. Dr. Talalaev stated that Plaintiff could sit in a clerical position

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frequently, and occasionally bend, crouch, kneel, squat, reach above shoulder level and work

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with arms extended in front. Id. at 630. Regarding Plaintiff’s use of his hands and arms, Dr.

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Talalaev limited Plaintiff to occasional power gripping, pushing and pulling; pinching with

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thumb and index finger; fine movements, typing/small assembly; and feel/touch where

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sensation is required. Id. Finally, Dr. Talalaev found Plaintiff to require limitations in his

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environment regarding extremes of heat and cold; sudden temperature or humidity changes;

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exhaust fumes, smoke or dust; and strong odors such as cleaning compounds or perfumes.

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Id.

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Plaintiff’s treating physician, Lou Lancero, M.D., found Plaintiff could perform light

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work, but that Plaintiff would require changing positions at least once per hour. AR at 625.

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Dr. Lancero further stated that Plaintiff could stand or walk during a work day only as

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tolerated. Id. Dr. Lancero stated that Plaintiff could frequently sit in a clerical position and

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work with his arms extended in front, and occasionally bend, crouch, kneel, squat, and reach

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above shoulder level. Id. at 626. Dr. Lancero limited Plaintiff to occasional power gripping,

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pushing and pulling, and frequent pinching with the thumb and index finger, fine movements,

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typing/small assembly, and feel/touch where sensation was required. Id.

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II.

STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are
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based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3);

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Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the

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Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based

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on legal error or are not supported by substantial evidence in the record as a whole.” Tackett

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v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

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Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a

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preponderance.” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871,

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873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is

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“such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can

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support either outcome, the court may not substitute its judgment for that of the ALJ.”

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Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992));

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see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may

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not focus on an isolated piece of supporting evidence, rather it must consider the entirety of

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the record weighing both evidence that supports as well as that which detracts from the

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Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations omitted).

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III.

ANALYSIS
The Commissioner follows a five-step sequential evaluation process to assess whether

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a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows:

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Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the claimant is not

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disabled; step two considers if the claimant has a “severe medically determinable physical

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or mental impairment[.]” If not, the claimant is not disabled; step three determines whether

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the claimant’s impairments or combination thereof meet or equal an impairment listed in 20

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C.F.R., Pt. 404, Subpt. P, App. 1. If not, the claimant is not disabled; step four considers the

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claimant’s residual functional capacity and past relevant work. If claimant can still do past

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relevant work, then he or she is not disabled; step five assesses the claimant’s residual

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functional capacity, age, education, and work experience. If it is determined that the

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claimant can make an adjustment to other work, then he or she is not disabled. 20 C.F.R. §

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404.1520(a)(4)(i)-(v).

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In the instant case, the ALJ found that Plaintiff was not engaged in substantial gainful

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activity since January 3, 2007. AR at 14. At step two of the sequential evaluation, the ALJ

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found that “[t]he claimant has the following severe impairments: status post myocardial

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infarction; depression; substance abuse (alcohol) (20 CFR 404.1520(c)).” Id. at 15. At step

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three, the ALJ found that Plaintiff “does not have an impairment or combination of

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impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404,

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Subpart P, Appendix 1 (20 CFR 404.1520(d)).” Id. at 15. At step four, while including

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Plaintiff’s substance abuse, the ALJ found that Plaintiff “is unable to perform past relevant

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work.” Id. at 17. The ALJ also analyzed step four if Plaintiff stopped the substance use,

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finding that Plaintiff “would have the residual functional capacity to perform the full range

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of light work as defined in 20 CFR 404.1567(b).” Id. at 19. The ALJ specifically found that

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Plaintiff “can occasionally lift 20 pounds and frequently lift 10 pounds; stand and walk with

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normal breaks for six hours in an eight hour workday; sit for six hours in an eight hour

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workday with normal breaks; he has no limitations in pushing/pulling except for as in lifting

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and carrying; no postural, manipulative, visual, communicative limitations; must avoid

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concentrated exposure to temperature extremes (heat and cold); . . . and he should avoid

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moderate exposure to work hazards such as moving machinery and unprotected heights.”

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AR at 19.

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psychological limitations.” Id. At step five, including substance abuse in his analysis, the

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ALJ determined that Plaintiff “is unable to perform any kind of work so long as substance

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abuse is a factor. Thus, a finding of ‘disabled’ is appropriate under the framework of the

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above-cited rule.” Id. at 18. The ALJ further found that “[i]f the claimant stopped the

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substance use, the claimant would be able to perform past relevant work as a production

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planner. This work does not require the performance of work-related activities precluded by

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The ALJ also found that “[a]bsent alcohol abuse, the claimant has no

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the residual functional capacity the claimant would have if he stopped the substance use (20

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CFR 4094.1565).” Id. at 21. Ultimately, the ALJ determined that “[b]ecause the claimant

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would not be disabled if he stopped the substance use (20 CFR 404.1520(f)), the claimant’s

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substance use disorder is a contributing factor material to the determination of disability (20

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CFR 404.1535). Thus, the claimant has not been disabled within the meaning of the Social

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Security Act[.]” Id. at 22. Plaintiff asserts that the ALJ erred in 1) failing to evaluate treating

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internist Dr. Talalaev’s October 2010 opinions; 2) failing to evaluate treating cardiologist Dr.

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Lancero’s October 2010 opinions; 3) erroneously evaluating examining physician Dr.

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Thrasher’s opinions; and 4) his step four analysis. Pl.’s Opening Brief (Doc. 16) at 8-18.

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The Commissioner acknowledges the first three errors delineated by Plaintiff. Def.’s

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Memorandum in Supp. of Def.’s Mot. to Remand (Doc. 20) at 3.

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A.

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“As a general rule, more weight should be given to the opinion of a treating source

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than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1996) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). “The

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opinion of a treating physician is given deference because ‘he is employed to cure and has

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a greater opportunity to know and observe the patient as an individual.’” Morgan v. Comm’r

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of the SSA, 169 F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226,

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1230 (9th Cir. 1987) (citations omitted)). “The ALJ may not reject the opinion of a treating

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physician, even if it is contradicted by the opinions of other doctors, without providing

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‘specific and legitimate reasons’ supported by substantial evidence in the record.” Rollins

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v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725

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(9th Cir. 1998)); See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Embrey v.

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Bowen, 849 F.2d 418, 421 (9th Cir. 1988). “The ALJ can meet this burden by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Embrey, 849 F.2d at 421 (quoting Cotton v.

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Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Moreover, “[e]ven if a treating physician’s

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Treating Physician Opinions

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opinion is controverted, the ALJ must provide specific, legitimate reasons for rejecting it.”

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Id. (citing Cotton, 799 F.2d at 1408).

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Here, the ALJ failed to meet this burden. It is undisputed that the ALJ failed to set

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forth “specific and legitimate” reasons supported by “substantial evidence in the record” as

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required by the Ninth Circuit. See, e.g., Rollins, 261 F.3d at 856.

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B.

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“‘[T]he decision whether to remand the case for additional evidence or simply to

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award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 F.2d 759, 763

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(9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). “Remand for

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further administrative proceedings is appropriate if enhancement of the record would be

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useful.” Benecke v. Barnhart, 379 F.3d 587, 593, (9th Cir. 2004) (citing Harman v. Apfel,

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211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits is

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appropriate where:

Determination of Benefits

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(1) the ALJ failed to provide legally sufficient reasons for rejecting the
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.

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Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand

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solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony

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to be established as true and remand for an award of benefits." Id. (citations omitted); see

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also Lester, 81 F.3d at 834.3 Further, “[w]here the Commissioner fails to provide adequate

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reasons for rejecting the opinion of a treating or examining physician, we credit that opinion

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‘as a matter of law.’” Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989); see also Pitzer

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[v. Sullivan], 908 F.2d[ 502,] 506 [(9th Cir. 1990)] (remanding for payment of benefits where

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Secretary did not provide adequate reasons for disregarding examining physician’s opinion).”

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In light of this Court’s conclusion regarding Plaintiff’s physical limitations, it need not
address the ALJ’s findings regarding substance abuse, as this issue is not material to the disability
determination.

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Lester, 81 F.3d at 834.

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Here, the ALJ neither indicated that the opinions of Plaintiff’s treating physicians Drs.

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Talalaev and Lancero were controverted nor provided clear and convincing reasons for

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rejecting them. See Lester, 81 F.3d at 830-31; AR at 19. Moreover, a treating physician's

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opinion is “entitled to special weight.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988).

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The record before the Court is fully developed. Based upon the physical restrictions

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determined by Dr. Talalaev, the vocational expert agreed that Plaintiff could not do any form

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of his past work, and agreed that there would be no other jobs existing in reasonable numbers

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in the national economy that Plaintiff could perform. Id. at 66-67. Properly crediting the

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opinion of Dr. Talalaev, the ALJ would be required to find Plaintiff is disabled. See Lester,

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81 F.3d at 834. As such, there are no outstanding issues that must be resolved before a

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determination of disability can be made.

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Commissioner denying Plaintiff’s application for benefits is reversed and remanded for an

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award of benefits.

Accordingly, the final decision of the

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IV.

CONCLUSION
In light of the foregoing, the Court reverses the Commissioner’s decision and remands

for an award of benefits.

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Accordingly, IT IS HEREBY ORDERED that:

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1)

Carolyn W. Colvin, Acting Commissioner of Social Security, is substituted

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as Respondent for Michael Astrue pursuant to Rule 25(d) of the Federal Rules of Civil

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Procedure;

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2)

Plaintiff’s Opening Brief (Doc. 16) is GRANTED;

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3)

The Commissioner’s Motion for Remand (Doc. 19) is GRANTED in part and

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DENIED in part;

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4)

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The Commissioner’s decision is REVERSED and REMANDED for calculation
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and award of benefits. 42 U.S.C. § 405(g); and

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5)

The Clerk of the Court shall enter judgment, and close its file in this matter.

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DATED this 11th day of September, 2013.

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