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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) ) Carolyn W. Colvin, Acting Commissioner of Social Security, ) ) ) Defendant. ) Richard Alex Coelho, No. CV-12-0328-TUC-BGM ORDER 15 Currently pending before the Court is Defendant’ Motion to Remand (Doc. 19). A 16 response has been filed, but no reply. Plaintiff brings this cause of action for review of the 17 final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). The 18 United States Magistrate Judge has received the written consent of both parties, and presides 19 over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. 20 The Court takes judicial notice that Michael J. Astrue is no longer Commissioner of the 21 Social Security Administration (“SSA”). 22 Commissioner of the SSA, Carolyn W. Colvin, as Defendant pursuant to Rule 25(d) of the 23 Federal Rules of Civil Procedure. The Court will substitute the new Acting 24 25 I. BACKGROUND 26 A. Procedural History 27 On January 29, 2007, Plaintiff filed an application for Social Security Disability 28 Insurance Benefits (“DIB”) alleging disability as of January 3, 2007 due to a myocardial 1 infarction, coronary artery disease, sleep apnea/upper airway resistance syndrome, 2 depression, anxiety, high blood pressure, and gastrointestinal problems. See Administrative 3 Record (“AR”) at 12, 81, 148, 196, 219, 223, 257. The Social Security Administration 4 (“SSA”) denied this application on July 26, 2007. Id. at 81, 93. Plaintiff filed a request for 5 reconsideration, and on January 25, 2008, SSA denied Plaintiff’s request. Id. at 81, 101. On 6 February 26, 2008, Plaintiff filed his request for hearing. Id. at 81, 104. On February 24, 7 2009, a hearing was held before Administrative Law Judge (“ALJ”) Norman R. Buls. Id. at 8 81; Suppl. AR at 1-28. The ALJ issued an unfavorable decision on April 27, 2009. AR at 9 78-88. Plaintiff requested review of the ALJ’s decision by the Appeals Council, review was 10 granted, and on May 18, 2010, the Appeals Council remanded the case back to an ALJ. Id. 11 at 89-92, 148-53. Upon remand, a supplemental hearing was held on October 26, 2010 12 before ALJ Norman R. Buls. Id. at 36-74. On January 5, 2011, ALJ Buls issued his Notice 13 of Decision, denying Plaintiff benefits. Id. at 9-22. On February 2, 2011, Plaintiff requested 14 appellate review, which was denied. Id. at 1-4, 190. Plaintiff filed this cause of action on 15 April 30, 2012. Compl. (Doc. 1). In response to Plaintiff’s Opening Brief (Doc. 16) filed 16 on September 14, 2012, the Commissioner filed her Motion to Remand (Doc. 19). 17 B. 18 Plaintiff was fifty-three (53) years old at the time of the supplemental administrative 19 hearing, and forty-nine (49) at the time of the alleged onset of his disability. AR at 39, 196. 20 Plaintiff possesses a high school education and attended two years of college at the time of 21 his alleged onset. Id. at 39. Prior to his alleged disability, Plaintiff worked for Raytheon 22 Missile Systems for twenty-six (26) years. Id. at 68, 164, 210, 224, 234, 239. Factual History 23 At the supplemental administrative hearing, Plaintiff testified that prior to the 24 termination of his employment with Raytheon, he was exhausted and unable to focus. AR 25 at 45. Plaintiff further testified that he no longer has “a desire to be involved in things.” Id. 26 at 47. Plaintiff testified that on a typical day he will “get up about three in the afternoon[,]” 27 and go to bed “[a]nywhere from ten to midnight.” Id. at 47. During his waking hours, 28 -2- 1 Plaintiff testified that he watches television and may cook, wash dishes and make the bed. 2 Id. at 47-8. Plaintiff further testified that he “started to get into watercolor painting,” but has 3 not painted in approximately a year. Id. at 48. Plaintiff also testified that he enjoys reading, 4 and used to garden, but currently does not have any other hobbies and does not exercise. AR 5 at 48-9. Plaintiff testified that he drinks approximately twenty (20) to thirty (30) beers per 6 week. Id. at 49. 7 Plaintiff testified that he had recently seen his cardiologist, and a change in the size 8 of his aorta was discovered. Id. at 50. Plaintiff further testified that he was expecting to have 9 a CT scan to determine how large his aorta had become, as well as for his stomach issues. 10 Id. at 50-1. 11 Regarding his previous employment at Raytheon Missile Systems, Plaintiff testified 12 that during his last year there he missed more work than was authorized, approximately thirty 13 (30) days. AR at 52. Plaintiff further testified that his job as a section manager at Raytheon 14 required him to lift up to fifty (50) pounds at least three (3) times per week. Id. at 53. 15 Plaintiff testified that his exhaustion goes beyond being tired, but that “it is a fuzziness with 16 how you see . . . things.” Id. at 55. Plaintiff also testified that his sleep apnea contributes to 17 his exhaustion. Id. at 56. 18 Regarding his emotional issues, Plaintiff testified that he used to enjoy painting, 19 gardening and golf, but he no longer has any interest in these things. Id. at 57. Plaintiff 20 further testified that although he used to love to golf, he has stopped playing due to a lack of 21 motivation. AR at 51-2. Plaintiff testified that he participates in only two benefit golf 22 tournaments per year. Id. at 47. Plaintiff further testified that it is likely that he is depressed, 23 and that he currently takes the anti-depressant Celexa. Id. at 57-8. Plaintiff also testified that 24 he has problems with anxiety, and that this has been an issue since his heart attack. Id. at 58. 25 Plaintiff testified that these issues also affected his desire and ability to work. Id. at 59; 26 Suppl. AR at 7. 27 28 Ms. Tracy Young, a vocational expert, also testified at the administrative hearing. AR -3- 1 at 61. Ms. Young testified that she would categorize Plaintiff’s job at Raytheon as a machine 2 shop supervisor, DOT number 600.130-010, a medium, very skilled position. Id. at 62. Ms. 3 Young further testified that alternatively, she would categorize Plaintiff as a production 4 planner, based on his previous work experience, which is a light, skilled position. Id. at 62. 5 Ms. Young identified Plaintiff as having skills, including scheduling, planning, supervising, 6 training, resolving problems, and mediation; however, she noted that his tenure with 7 Raytheon and lack of a college degree may limit the transferability of those skills to a highly 8 skilled position. Id. at 64. Accordingly, the ALJ asked Ms. Young, hypothetically, whether 9 an individual of claimant’s age, education and work background with physical limitations 10 including occasionally lifting twenty (20) pounds, frequently lifting ten (10) pounds, stand 11 and walk with normal breaks for a total of six hours in an eight hour work day, sit with 12 normal breaks for a total of six hours in an eight hour work day, and without limitation of 13 pushing and pulling other than per lifting and carrying, and no postural or manipulative 14 limitations, no visual limitations, no communicative limitations, and the individual must 15 avoid moderate exposure to hazards, such as machinery and heights, and mentally has 16 moderate limitations in the ability to make judgements on complex work-related decisions 17 and to respond appropriately to usual work situations and to changes in a routine work 18 setting, would be able to perform any past relevant work of Plaintiff. Id. at 64-5. Ms. Young 19 opined that the physical limitations would preclude him from performing the medium job of 20 machine shop supervisor. AR at 65. 21 22 23 24 25 26 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. 27 28 -4- 1 Id. at 66. Based on these physical restrictions, Ms. Young agreed that Plaintiff could not do 2 any form of his past work. Id. She further agreed that there would be no other jobs existing 3 in reasonable numbers in the national economy that Plaintiff could perform. Id. at 67. 4 Plaintiff’s counsel also asked Ms. Young a hypothetical regarding Plaintiff’s mental 5 limitations as reported by examining psychiatrist Dr. Rohen, diagnosing a major depressive 6 disorder, and moderate limitations in Plaintiff’s ability to complete a normal work day or 7 week, to perform at a consistent pace without an unreasonable number and length of rest 8 periods, to perform activities with a schedule, maintain regular attendance, and be punctual 9 within customary tolerances, coupled with his ability to occasionally lift twenty-five (25) 10 pounds and frequently ten (10) pounds. Id. at 67. Based upon this information, Ms. Young 11 opined that the combination would preclude Plaintiff from doing the kind of work he had 12 previously done and preclude him from any other kind of work that exists in reasonable 13 numbers in the national economy. AR at 67-8. 14 Pursuant to request by the Arizona Department of Economic Security (“AZDES”), 15 Plaintiff was examined by Dennis Thrasher, M.D. Id. at 590-600. Plaintiff saw Dr. Thrasher 16 on August 9, 2010. Id. at 590. Dr. Thrasher reviewed Plaintiff’s medical records, 17 interviewed him and performed a physical examination. Id. at 590-600. Dr. Thrasher’s 18 assessment indicated a history of coronary artery disease, with current complaints of 19 excessive fatigue, obstructive sleep apnea, Barrett’s esophagitis and chronic dyspepsia, and 20 depression and anxiety. Id. at 592. Dr. Thrasher found that Plaintiff could lift and carry up 21 to ten (10) pounds continuously, up to twenty (20) pounds frequently and up to fifty (50) 22 pounds occasionally. AR at 594. In an eight (8) hour work day, Dr. Thrasher found that 23 Plaintiff could sit for six (6) hours, stand for two (2) hours and walk for one (1) hour. Id. at 24 595. Dr. Thrasher also found some limitation in Plaintiff’s ability in reaching and pushing 25 or pulling. Id. at 596. Dr. Thrasher further found that Plaintiff could frequently stoop, 26 occasionally climb stairs and ramps, balance, kneel, crouch and crawl, and never climb 27 ladders or scaffolds. Id. at 597. Dr. Thrasher additionally found that Plaintiff could 28 -5- 1 frequently tolerate moving mechanical parts; occasionally tolerate operating a motor vehicle, 2 humidity and wetness, and vibrations; and never tolerate unprotected heights, dust, odors, 3 fumes, and pulmonary irritants or extreme cold or heat. AR at 598. 4 Plaintiff’s records were reviewed by state agency physician Michael Maximov, M.D. 5 Id. at 381. Dr. Maximov determined that Plaintiff could occasionally lift and/or carry up to 6 twenty (20) pounds, frequently lift and/or carry up to ten (10) pounds, stand and/or walk 7 (with normal breaks) for a total of about six (6) hours in an eight (8) hour work day and sit 8 (with normal breaks) for a total of about six (6) hours in an eight (8) hour work day. Id. at 9 381. Dr. Maximov limited Plaintiff’s ability to push and/or pull only to the degree that he 10 was limited in carrying or lifting. Id. Dr. Maximov did not find any postural, manipulative, 11 visual or communicative limitations for Plaintiff. Id. at 382-4. Dr. Maximov determined 12 Plaintiff should avoid concentrated exposure to extreme heat and extreme cold and should 13 avoid even moderate exposure to hazards such as machinery and heights. AR at 384. Dr. 14 Maximov stated that Plaintiff’s “fatigue appears more likely related to depression, untreated 15 sleep apnea, deconditioning, alcoholism or excessive sleep rather than to CAD, Barrett’s 16 esophagus, or hyperlipidemia.” Id. at 385. Pursuant to request by the Commissioner, Jerry 17 L. Dodson, M.D., reviewed the records in this case. Id. at 116. Dr. Campbell affirmed the 18 Residual Functional Capacity assessment of Dr. Maximov. Id. 19 Pursuant to request by AZDES, Plaintiff was referred for evaluation by Noelle Rohen, 20 Ph.D. and examined on July 2, 2007. Id. at 388. Dr. Rohen reviewed Plaintiff’s medical 21 records provided by Disability Determination Services, performed a clinical interview and 22 mini-mental state examination. Id. at 388. Dr. Rohen diagnosed Plaintiff with major 23 depressive disorder and anxiety disorder, not otherwise specified. Id. at 390-91. She 24 deferred to Plaintiff’s medical records regarding physical diagnoses. Id. Dr. Rohen noted 25 that Plaintiff’s “[d]epression has been chronic despite treatment and is likely to persist unless 26 treatment is adjusted, and can be expected to impact him in the workplace via its contribution 27 to attendance problems and slowed performance.” AR at 390-91. 28 -6- 1 On July 25, 2007 Plaintiff was examined by Andres Kerns, Ph.D.1 Id. at 397-414. 2 Dr. Kerns performed a Mental Residual Functional Capacity Assessment and determined that 3 Plaintiff was moderately limited in his ability to perform activities within a schedule, 4 maintain regular attendance and be punctual within customary tolerances, as well as his 5 ability to complete a normal workday and workweek without interruptions from 6 psychologically based symptoms and to perform at a consistence pace without an 7 unreasonable number and length of rest periods. Id. at 397-98. Dr. Kerns diagnosed Plaintiff 8 with a depressive disorder and anxiety disorder, not otherwise specified. Id. at 404, 406. Dr. 9 Kerns found Plaintiff to be moderately limited in his ability to maintain concentration, 10 persistence, or pace. Id. at 411. Pursuant to request by the Commissioner, Eugene Campbell, 11 Ph.D. reviewed the records in this case. AR at 415. Dr. Campbell affirmed Dr. Kerns’s 12 Psychiatric Review Technique Form (“PRTF”) and Mental Residual Functional Capacity 13 (“MRFC”) form decision. Id. 14 Plaintiff was also examined by Kathleen V. Prouty, Ph.D. on July 30, 2010.2 Id. at 15 585-89. Dr. Prouty reviewed Plaintiff’s medical records provided by Disability 16 Determination Services, performed a clinical interview and mini-mental state examination. 17 Id. at 585. Dr. Prouty determined that Plaintiff’s basic cognitive and memory function is 18 grossly intact. Id. at 586. Regarding Plaintiff’s alcohol consumption, Dr. Prouty stated this 19 “can contribute to changes in his moods and behaviors.” AR at 586. Moreover, she stated 20 that Plaintiff “has limited insight into his alcohol use and its effects on his physical and 21 mental well-being.” Id. The ALJ relied on Dr. Prouty’s finding in his decision. Id. at 16. 22 Plaintiff’s treating physician, Yuri Talalaev, M.D., determined that Plaintiff could 23 24 25 26 1 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. 2 27 It appears that Dr. Prouty’s examination took place at the request of the Commissioner; however, her report does not state so explicitly. 28 -7- 1 perform sedentary work part-time, for four (4) hours of an eight (8) hour day, but could not 2 perform any form of light, medium or heavy work. Id. at 629. Dr. Talalaev further 3 determined that during the work day, Plaintiff could stand for twenty (20) minutes at a time 4 for a total of 1.3 total hours and sit for forty (40) minutes at a time for 3.7 total hours. Id. 5 Dr. Talalaev also stated that frequent position changes would be necessary. AR at 629. 6 Furthermore, Dr. Talalaev found Plaintiff could not climb either ladders or stairs, and would 7 be expected to miss an average of three (3) workdays per month as a result of his disability 8 and normal illness. Id. Dr. Talalaev stated that Plaintiff could sit in a clerical position 9 frequently, and occasionally bend, crouch, kneel, squat, reach above shoulder level and work 10 with arms extended in front. Id. at 630. Regarding Plaintiff’s use of his hands and arms, Dr. 11 Talalaev limited Plaintiff to occasional power gripping, pushing and pulling; pinching with 12 thumb and index finger; fine movements, typing/small assembly; and feel/touch where 13 sensation is required. Id. Finally, Dr. Talalaev found Plaintiff to require limitations in his 14 environment regarding extremes of heat and cold; sudden temperature or humidity changes; 15 exhaust fumes, smoke or dust; and strong odors such as cleaning compounds or perfumes. 16 Id. 17 Plaintiff’s treating physician, Lou Lancero, M.D., found Plaintiff could perform light 18 work, but that Plaintiff would require changing positions at least once per hour. AR at 625. 19 Dr. Lancero further stated that Plaintiff could stand or walk during a work day only as 20 tolerated. Id. Dr. Lancero stated that Plaintiff could frequently sit in a clerical position and 21 work with his arms extended in front, and occasionally bend, crouch, kneel, squat, and reach 22 above shoulder level. Id. at 626. Dr. Lancero limited Plaintiff to occasional power gripping, 23 pushing and pulling, and frequent pinching with the thumb and index finger, fine movements, 24 typing/small assembly, and feel/touch where sensation was required. Id. 25 26 27 28 II. STANDARD OF REVIEW The factual findings of the Commissioner shall be conclusive so long as they are -8- 1 based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); 2 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the 3 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based 4 on legal error or are not supported by substantial evidence in the record as a whole.” Tackett 5 v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). 6 Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a 7 preponderance.” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 8 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is 9 “such relevant evidence as a reasonable mind might accept as adequate to support a 10 conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can 11 support either outcome, the court may not substitute its judgment for that of the ALJ.” 12 Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); 13 see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may 14 not focus on an isolated piece of supporting evidence, rather it must consider the entirety of 15 the record weighing both evidence that supports as well as that which detracts from the 16 Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations omitted). 17 18 19 III. ANALYSIS The Commissioner follows a five-step sequential evaluation process to assess whether 20 a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: 21 Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the claimant is not 22 disabled; step two considers if the claimant has a “severe medically determinable physical 23 or mental impairment[.]” If not, the claimant is not disabled; step three determines whether 24 the claimant’s impairments or combination thereof meet or equal an impairment listed in 20 25 C.F.R., Pt. 404, Subpt. P, App. 1. If not, the claimant is not disabled; step four considers the 26 claimant’s residual functional capacity and past relevant work. If claimant can still do past 27 relevant work, then he or she is not disabled; step five assesses the claimant’s residual 28 -9- 1 functional capacity, age, education, and work experience. If it is determined that the 2 claimant can make an adjustment to other work, then he or she is not disabled. 20 C.F.R. § 3 404.1520(a)(4)(i)-(v). 4 In the instant case, the ALJ found that Plaintiff was not engaged in substantial gainful 5 activity since January 3, 2007. AR at 14. At step two of the sequential evaluation, the ALJ 6 found that “[t]he claimant has the following severe impairments: status post myocardial 7 infarction; depression; substance abuse (alcohol) (20 CFR 404.1520(c)).” Id. at 15. At step 8 three, the ALJ found that Plaintiff “does not have an impairment or combination of 9 impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, 10 Subpart P, Appendix 1 (20 CFR 404.1520(d)).” Id. at 15. At step four, while including 11 Plaintiff’s substance abuse, the ALJ found that Plaintiff “is unable to perform past relevant 12 work.” Id. at 17. The ALJ also analyzed step four if Plaintiff stopped the substance use, 13 finding that Plaintiff “would have the residual functional capacity to perform the full range 14 of light work as defined in 20 CFR 404.1567(b).” Id. at 19. The ALJ specifically found that 15 Plaintiff “can occasionally lift 20 pounds and frequently lift 10 pounds; stand and walk with 16 normal breaks for six hours in an eight hour workday; sit for six hours in an eight hour 17 workday with normal breaks; he has no limitations in pushing/pulling except for as in lifting 18 and carrying; no postural, manipulative, visual, communicative limitations; must avoid 19 concentrated exposure to temperature extremes (heat and cold); . . . and he should avoid 20 moderate exposure to work hazards such as moving machinery and unprotected heights.” 21 AR at 19. 22 psychological limitations.” Id. At step five, including substance abuse in his analysis, the 23 ALJ determined that Plaintiff “is unable to perform any kind of work so long as substance 24 abuse is a factor. Thus, a finding of ‘disabled’ is appropriate under the framework of the 25 above-cited rule.” Id. at 18. The ALJ further found that “[i]f the claimant stopped the 26 substance use, the claimant would be able to perform past relevant work as a production 27 planner. This work does not require the performance of work-related activities precluded by 28 - 10 - The ALJ also found that “[a]bsent alcohol abuse, the claimant has no 1 the residual functional capacity the claimant would have if he stopped the substance use (20 2 CFR 4094.1565).” Id. at 21. Ultimately, the ALJ determined that “[b]ecause the claimant 3 would not be disabled if he stopped the substance use (20 CFR 404.1520(f)), the claimant’s 4 substance use disorder is a contributing factor material to the determination of disability (20 5 CFR 404.1535). Thus, the claimant has not been disabled within the meaning of the Social 6 Security Act[.]” Id. at 22. Plaintiff asserts that the ALJ erred in 1) failing to evaluate treating 7 internist Dr. Talalaev’s October 2010 opinions; 2) failing to evaluate treating cardiologist Dr. 8 Lancero’s October 2010 opinions; 3) erroneously evaluating examining physician Dr. 9 Thrasher’s opinions; and 4) his step four analysis. Pl.’s Opening Brief (Doc. 16) at 8-18. 10 The Commissioner acknowledges the first three errors delineated by Plaintiff. Def.’s 11 Memorandum in Supp. of Def.’s Mot. to Remand (Doc. 20) at 3. 12 A. 13 “As a general rule, more weight should be given to the opinion of a treating source 14 than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 15 830 (9th Cir. 1996) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). “The 16 opinion of a treating physician is given deference because ‘he is employed to cure and has 17 a greater opportunity to know and observe the patient as an individual.’” Morgan v. Comm’r 18 of the SSA, 169 F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 19 1230 (9th Cir. 1987) (citations omitted)). “The ALJ may not reject the opinion of a treating 20 physician, even if it is contradicted by the opinions of other doctors, without providing 21 ‘specific and legitimate reasons’ supported by substantial evidence in the record.” Rollins 22 v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 23 (9th Cir. 1998)); See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Embrey v. 24 Bowen, 849 F.2d 418, 421 (9th Cir. 1988). “The ALJ can meet this burden by setting out a 25 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 26 interpretation thereof, and making findings.” Embrey, 849 F.2d at 421 (quoting Cotton v. 27 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Moreover, “[e]ven if a treating physician’s 28 - 11 - Treating Physician Opinions 1 opinion is controverted, the ALJ must provide specific, legitimate reasons for rejecting it.” 2 Id. (citing Cotton, 799 F.2d at 1408). 3 Here, the ALJ failed to meet this burden. It is undisputed that the ALJ failed to set 4 forth “specific and legitimate” reasons supported by “substantial evidence in the record” as 5 required by the Ninth Circuit. See, e.g., Rollins, 261 F.3d at 856. 6 B. 7 “‘[T]he decision whether to remand the case for additional evidence or simply to 8 award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 F.2d 759, 763 9 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). “Remand for 10 further administrative proceedings is appropriate if enhancement of the record would be 11 useful.” Benecke v. Barnhart, 379 F.3d 587, 593, (9th Cir. 2004) (citing Harman v. Apfel, 12 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits is 13 appropriate where: Determination of Benefits 16 (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. 17 Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand 18 solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony 19 to be established as true and remand for an award of benefits." Id. (citations omitted); see 20 also Lester, 81 F.3d at 834.3 Further, “[w]here the Commissioner fails to provide adequate 21 reasons for rejecting the opinion of a treating or examining physician, we credit that opinion 22 ‘as a matter of law.’” Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989); see also Pitzer 23 [v. Sullivan], 908 F.2d[ 502,] 506 [(9th Cir. 1990)] (remanding for payment of benefits where 24 Secretary did not provide adequate reasons for disregarding examining physician’s opinion).” 14 15 25 3 27 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. 28 - 12 - 26 1 Lester, 81 F.3d at 834. 2 Here, the ALJ neither indicated that the opinions of Plaintiff’s treating physicians Drs. 3 Talalaev and Lancero were controverted nor provided clear and convincing reasons for 4 rejecting them. See Lester, 81 F.3d at 830-31; AR at 19. Moreover, a treating physician's 5 opinion is “entitled to special weight.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). 6 The record before the Court is fully developed. Based upon the physical restrictions 7 determined by Dr. Talalaev, the vocational expert agreed that Plaintiff could not do any form 8 of his past work, and agreed that there would be no other jobs existing in reasonable numbers 9 in the national economy that Plaintiff could perform. Id. at 66-67. Properly crediting the 10 opinion of Dr. Talalaev, the ALJ would be required to find Plaintiff is disabled. See Lester, 11 81 F.3d at 834. As such, there are no outstanding issues that must be resolved before a 12 determination of disability can be made. 13 Commissioner denying Plaintiff’s application for benefits is reversed and remanded for an 14 award of benefits. Accordingly, the final decision of the 15 16 17 18 IV. CONCLUSION In light of the foregoing, the Court reverses the Commissioner’s decision and remands for an award of benefits. 19 20 Accordingly, IT IS HEREBY ORDERED that: 21 1) Carolyn W. Colvin, Acting Commissioner of Social Security, is substituted 22 as Respondent for Michael Astrue pursuant to Rule 25(d) of the Federal Rules of Civil 23 Procedure; 24 2) Plaintiff’s Opening Brief (Doc. 16) is GRANTED; 25 3) The Commissioner’s Motion for Remand (Doc. 19) is GRANTED in part and 26 DENIED in part; 27 4) 28 The Commissioner’s decision is REVERSED and REMANDED for calculation - 13 - 1 and award of benefits. 42 U.S.C. § 405(g); and 2 5) The Clerk of the Court shall enter judgment, and close its file in this matter. 3 DATED this 11th day of September, 2013. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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