Heser v. Colvin

Filing 17

ORDER AND OPINION. IT IS ORDERED that the 14 FINDINGS AND RECOMMENDATIONS ARE ADOPTED IN FULL. IT IS FURTHER ORDERED that Plaintiff Sharon E. Heser's 9 MOTION for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that the Com missioner's decision is VACATED and this matter is REMANDED for payment of benefits consistant with this Order and the findings and recommendations hereby adopted. The Clerk of Court shall enter Judgment in favor of Heser and close this case. Signed by Judge Susan P. Watters on 11/17/2014. (EMH, )

IN THE UNITED STATES DISTRICT COUR
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

/:/LED
Nov J 7 zou
Clerk, US

District o~':/'lct Court
8;11·

ontan.

1ngs

SHARON E. HESER,
CV 14-39-BLG-S W
Plaintiff,
OPINION AND RDER

vs.
CAROLYN W. COL VIN, Acting
Commissioner of Social Security,
Defendant.

Sharon Heser ("Heser") filed this lawsuit under 42 U.S.C. § 05(g) seeking
judicial review of the Defendant Carolyn Colvin, Acting Commissioner of Social
Security's ("the Commissioner") decision to deny her application£ r disability
insurance benefits. (Doc. 1). Heser moved for summary judgme t on July 8,
2014. (Doc. 9). On September 8, 2014, Magistrate Judge Caroly
her Findings and Recommendations recommending that this Court

ant Heser' s

motion, reverse the Commissioner's decision, and remand for pay ent of benefits.
(Doc. 14). The Commissioner filed timely Objections to the Findi
. .
.
Recommendations on September 15, 2014. (Doc. 15). The Com iss10ner is

1

"'

entitled to a de novo review of the findings and recommendations t which she
objects. 28 U.S.C. § 636(b )(1 ).

I.

BACKGROUND
Magistrate Judge Ostby thoroughly laid out the procedural h'story of this

matter and a summary of the administrative record in her Findings

d

Recommendations. As this history is well-known to the parties, th' s Court adopts
Magistrate Judge Ostby's description of the background facts, admi istrative record
and procedural history. A short summary of relevant events is lai out below.
i

A.

Procedural History

Reser filed applications for disability and supplemental soci 1 security
income benefits under the Social Security Act in 2008. (AR 202, 07-21). Reser
claims her conditions rendered her unable to work since August 14 2002. (Id.)
She amended this date to May 23, 2005. (Doc. 9 at 15). Reser clJmed an inability
to work due to several conditions, including cervical, thoracic, and umbar back
pain, fibromyalgia, bilateral carpal tunnel syndrome, plantar fasciit s, sleep apnea,
obesity, depression, and anxiety disorder. (AR 419-26).
Reser's request was denied initially and upon reconsideratio . (AR 221-26,
228-31). On September 1, 2010 an Administrative Law Judge(" LJ") held a
hearing. (AR 34-123). On December 22, 2010, the ALJ issued a written decision
2

denying Heser's claims. (AR 202-09). Heser sought review of th ALJ's decision
by the Appeals Council. (AR 261). On April 16, 2012, the Appe ls Council
granted Heser's request for review, vacated the ALJ's decision, an remanded
Heser's request. The Appeals Council instructed the ALJ to, amo
instructions, re-evaluate Heser's treating physicians' opinion evide ce, evaluate her
mental impairment and the effect of her obesity, and consider the c edibility of
non-medical source evidence. (AR 216-218).
On September 11, 2012, the ALJ held a second hearing on H ser's claims.
(AR 124-94). On October 22, 2012, the ALJ issued a second writt n decision
denying Heser's claims. (AR 15-27). On January 24, 2014, after the Appeals
Council denied Heser's request for review, the ALJ's decision bee

e final for

purposes of judicial review. (AR 3-5). 20 CFR §§ 404.981, 416. 481 (2013).
B.

ALJ'S Written Decision

The ALJ found that Heser last met the insured status require ents through
December 31, 2007. (AR 17). Heser did not engage in substantia gainful activity
from the alleged date of onset, May 23, 2005. (Id.) The ALJ fou d that Heser had
the following severe impairments: carpal tunnel syndrome; fibrom algia;
status-post discectomy and fusion at C5-6; status post-laminectom at L5-Sl;
obesity; and plantar fasciitis. (Id.) He concluded that Heser did ot have an
3

impairment or combination of impairments that met one of the liste impairments
under the Act. (AR 18-19). Affording Heser' s treating physicians' opinions "little
weight," the ALJ rejected the limitations they recommended and d termined that
Heser has a residual functional capacity to perform light work, wi

certain

limitations. (AR 20). He concluded that her residual functional c pacity allowed
her to perform past relevant work as a billing clerk and an insuranc agent. (AR
26). As a result, the ALJ found that Heser was not disabled from

ay 23, 2005, to

the date of the decision. (AR 27).
II.

LEGAL STANDARD
A.

Overview

To qualify for disability benefits under the SSA, an applican is required to
show two things. First, she must show that she suffers from a me ically
determinable impairment that can be expected to result in death, or hat has lasted or
can be expected to last for a continuous period of twelve months or more. See 42
U.S.C. § 423(d)(l)(A). Second, she must show that the impairme t renders her
incapable of performing the work that she previously performed, o any other
substantially gainful employment that exists in the national econo y. See 42
U.S.C. § 423(d)(2) (A).
Regulations promulgated pursuant to the SSA specify the pr cess that the
4

Social Security Administration uses to determine whether an appli ant is disabled.
20 C.F.R. § 404.1520. At step 1, the agency considers whether th claimant is
presently working in any substantial gainful activity. If so, she is ot disabled. If
not, the agency considers whether the claimant's impairment is sev re in Step 2. If
not severe, she is not disabled. If the impairment is severe, the ag ncy then
considers in Step 3 whether the impairment meets or equals a speci 1c impairment
listed in the Listing of Impairments. If so, the applicant is disable . If not, the
agency considers at Step 4 whether the claimant is able to do any o her work,
including past work. If not, the claimant is disabled. If at Step 5

ere are a

significant number of jobs in the national economy that the claima t can do, the
claimant is not disabled. 20 C.F.R. § 404.1520; see also Tackett v Apfel, 180 F .3d
1094, 1098-99 (9th Cir. 1999). The burden at steps one through f. ur rests on the
applicant, but the burden at step five rests on the agency. Celaya . Halter, 332
F.3d 1177, 1180 (9th Cir. 2003). Applicants who are not disqualifi d at step five are
eligible for disability benefits. Id.

B.

Standard of Review

An applicant may seek judicial review of a final agency deci ion pursuant to
42 U.S.C. §§ 405(g), 1383(c)(3). This Court's review is limited, owever. A
district court reviews de novo any part of a Magistrate Judge's Fin ings and
5

Recommendation to which there has been proper objections. Fed. R. Civ. P.
72(b)(3). A final decision may only be disturbed if the ALJ's find ngs of fact are
based on legal error or are not supported by "substantial evidence i the record as a
whole." Schneider v. Comm 'r ofSoc. Sec. Admin., 223 F.3d 968, 9 3 (9th Cir.
2000). "Substantial evidence means more than a mere scintilla bu less than a
preponderance; it is such relevant evidence as a reasonable mind m"ght accept as
adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1 35, 1039 (9th
Cir. 1995).
The Court must consider the record as a whole, weighing bo h the evidence
that supports and detracts from the ALJ's conclusion. See Mayes v. Massanari, 276
F.3d 453, 459 (9th Cir. 2001); Desrosiers v. Sec '.Y of Health & Hu an Servs., 846
F.2d 573, 576 (9th Cir. 1988). "The ALJ is responsible for determ ning credibility,
resolving conflicts in medical testimony, and for resolving ambigui ies." Andrews,
53 F.3d at 1039. Where the evidence is susceptible to more than

e rational

interpretation, the ALJ's decision must be upheld. Id.

III.

DISCUSSION
The Commissioner contends that the ALJ appropriately affo <led Heser's

treating physician, Dr. Scott Sears' opinions "little weight." (Doc. 15 at 3). The
Commissioner also contends that substantial evidence supports the ALJ's decision
6

that Reser is not disabled. (Id. at 12). The Court finds that the

J erred by

failing to afford Dr. Sears' opinion greater weight as a treating phy ician. The
Court also finds the ALJ's opinion that Reser is not disabled is not upported by
substantial evidence. This matter is reversed and remanded.
A.

The ALJ did not support his decision to discount D . Sears'
opinion with specific and legitimate reasons.

In Social Security Disability cases, the Ninth Circuit <listing ishes between
opinions from three kinds of physicians: treating physicians, exami ing physicians
who do not treat the patient, and non-examining physicians. Leste v. Chafer, 81
F.3d 821, 830 (9th Cir.1995). A treating physician's opinion gener lly carries more
weight than a non-treating physician, and an examining physician as more weight
than a non-examining physician. Id.
As a general matter, a "treating physician's medical opinion s to the nature
and severity of an individual's impairment must be given controlli g weight if that
opinion is well-supported and not inconsistent with the other subst tial evidence in
the case record." Edlund v. Massanari, 253 F.3d 1152, 1157 (9th ir.2001) (citing
Social Security Ruling (SSR) 96-2p). Where a treating physician's opinion is not
contradicted by another doctor, it may only be rejected for "clear a d convincing
reasons." Lester, 81 F.3d at 831. Where the treating physician's o inion is

7

contradicted by another doctor, however, the ALJ "may not reject t is opinion
without providing 'specific and legitimate reasons' supported bys bstantial
evidence in the record for so doing." Id. (quoting Murray v. Hee !er, 722 F.2d
499, 502 (9th Cir. 1983)).
"An ALJ can meet this burden by setting out a detailed and t orough
summary of the facts and conflicting clinical evidence, stating his i terpretation
thereof, and making findings." Cotton v. Brown, 799 F.2d 1403, 1 08 (9th
Cir.1986). The ALJ cannot simply state that the medical opinions re not supported
by sufficient objective findings, or are contrary to the preponderant conclusions
mandated by the objective findings. Embrey v. Bowen, 849 F.2d 18, 421 (9th
Cir.1988).
Here, Dr. Sears opined that Reser was not a malingerer, had epression and
her impairments would constantly cause pain severe enough to inte fere with
attention and concentration needed to perform even simple work ta ks. (AR
758-60). Dr. Sears found she could walk half a block, sit 20-30 m nutes, stand
20-30 minutes, and would need 5 to 10 minute unscheduled breaks hourly, needs to
elevate her legs twenty percent of the day, and would be absent fro

work four or

more days per month as a result of her impairments. (Id.) Dr. Se rs specifically

8

stated that he found these limitations reasonable and likely based o his
examinations and treatment. (Id. at 764).
Although Dr. Sears was Heser's treating physician, the ALJ ave his opinion
"little weight." (AR 23). The Commissioner argues that the ALJ properly
concluded that Dr. Sears' opinions deserved little weight because" ost of Dr.
Sears' treatment pertained to Heser's 'general maladies,"' and "Dr. Sears' notes
contained insufficient evidence to support the limitations he found r that Heser
reported." (Id. at 3-12).
1.

Specific findings supporting Heser's limitati

Here, the ALJ gave Dr. Sears' opinion minimal weight, in p rt, because he
found that Dr. Sears' "examinations of the claimant do not docume t specific
findings that would support the limitations noted." (AR 24). Ho ever, the ALJ's
conclusion is undermined by his own recitation of the evidence.
First, the ALJ determined there was a "paucity of medical ev dence
supporting a finding of disability" after citing the following medic

evidence:

- Dr. Sears had diagnosed Heser with plantar fasciitis, injeolted her heel,
prescribed additional injections and special boots to allevl"ate her
symptoms, and noted her pain at an 8 out of 1O;
Dr. Sears' records confirmed positive Phalen's sign, an o ~ective medical
sign of carpal tunnel syndrome, reported that Heser exper enced tingling
and numbness that radiated into her fingers, and noted th Heser had
9

received cortisone injections and wore splints at night to elp with her
symptoms;
- Dr. Sears had diagnosed Heser with fibromyalgia after sh had a cervical
discectomy and fusion and a laminectomy that she aggra ated in May
2006, for which she received epidural steroid injections a d exhibited
tenderness in her thoracic spine. (AR 22).
Despite the existence of the above medical evidence, the AL stated that, in
his opinion, there was no objective medical evidence ofHeser's di ability, and Dr.
Sears treatment was not "sufficient" to support Heser's limitations. (AR 24). The
ALJ's opinion alone, however, is insufficient to call into question treating
physician's opinions. The ALJ's role as fact-finder imposes on hi

a duty to

resolve conflicts in medical evidence. Thomas v. Barnhart, 278 F. d 947, 957 (9th
Cir. 2002) (citing Matney v. Sullivan, 981F.2d1016, 1019 (9th Ci .1992)). That
role does not grant him a license to exercise his own, independent 1 edical judgment
in the absence of such conflict. See Tackett, 180 F.3d at 1102; Da v. Weinberger,
522 F.2d 1154, 1156 (9th Cir. 1975). The ALJ's lay opinion of w at treatment
should have been prescribed to Heser and what symptoms she shoul have exhibited
if she were truly disabled is not a sufficient basis to discredit Dr. S ars' educated
medical opinions. Id.
Next, the ALJ determined that Heser's limitations were not' supported" by
Dr. Sears' medical notes. (AR 28); (see also Doc. 15 at 6). This ourt finds that a
10

reasonable person could not come to this conclusion without impe

issibly "cherry

picking" records to support such a determination. See Robinson v. Barnhart, 366
F.3d 1078, 1083 (10th Cir. 2004) ("The ALJ is not entitled to pick nd choose from
a medical opinion, using only those parts that are favorable to a fin ing of
nondisability."); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir 1984) ("[T]he
Secretary's attempt to use only the portions [of a report] favorable o her position,
while ignoring other parts, is improper.").
Notably, the ALJ relied only upon Heser's episodes of impr vement and
failed to recognize the portions of the records that reported her ong ing symptoms,
physical limitations, and reasons for not pursuing treatment. (AR 2-24). For
example, in support of his finding, the ALJ stated that Heser's "co lrse of treatment
has been conservative in nature," (AR 23), yet ignored the fact that Dr. Sears' notes
reported that Reser took the "conservative" treatment route becaus she could not
afford surgery or injections, (AR 646 (stating "She has responded t cortisone
injections in the past. I asked her if she followed up with Dr. Curt s Settergren.
She states, "I can't afford to.")), and ignored Heser's similar testim ny. (See AR
156 (Q: "Has there ever been any talk of doing surgery on the han
can't afford it.").

11

The ALJ discounted Dr. Sears' finding that Heser lacked co centration
needed to perform simple work tasks because Heser "studied for a d passed the
examination to become an insurance agent," but ignored her testim ny that she had
to take the test seventeen times over the course of six-months to a ear before she
passed.

(AR 149-50). The ALJ cited the fact that Heser "worke part-time from

January through April 2012," but ignored her testimony that she ha to reschedule
frequently due to pain and made only one sale (that her boss had al eady set up) and
a total of $346 over four months. (AR 140).
More examples of cherry picking exist in the ALJ' s consider ti on of her
physical abilities. The ALJ said Heser's treatment records proves e improved
when she was more "active" like "studying, taking a test, working nd exercising,"
(AR 23, citing Ex. 29F), but he failed to note that during those "act ve" periods, she
was taking six 325 mg tablets of hydrocodone (narcotic), 50 mg of Savella
(fibromyalgia medication) and 10 mg ofFlexeril (muscle relaxant) daily, and her
pain complaints remained the same. (Id.) The ALJ found Heser

as able to

exercise, but ignored Heser's testimony that her "exercise" was str tching 15
minutes two times a day and attending aquatic classes, all which sh testified she did
to help alleviate her chronic pain. (AR 143, 165-66).

12

While recognizing that Heser's medications are helpful in co trolling her
pain, the ALJ held against her all the instances she was able to funct on, even though
her alleged disability involves flare-ups of pain that can come and o. (AR 673).
Further, he made no determination as to whether Heser's abilities e er strayed
beyond the limitations described by Dr. Sears. This was error bee use "[o]ne does
not need to be 'utterly incapacitated' in order to be disabled." Ver igan v. Halter,
260 F.3d 1044, 1050 (9th Cir. 2001). Taking all of the records int consideration,
instead of those "cherry picked," this Court finds that a reasonable p rson could only
accept that Reser is disabled. Andrews, 53 F.3d at 1039.
Moreover, none of these activities support a finding ofnondi ability.
Heser's ability to carry out simple daily activities, exercise fifteen

inutes twice a

day and walk her dogs does not detract from Dr. Sears' disability fi ding and
limitations. See Vertigan, 260 F.3d at 1050 ("[T]he mere fact that a plaintiff has
carried on certain daily activities ... does not in any way detract fro

her credibility

as to her overall disability .... the fact that a claimant performs ce ain physical
activities despite pain, for therapeutic reasons, does not mean that th claimant could
concentrate on work or engage in a similar activity for a longer per od of time);
Jordan v. Astrue, 262 Fed. Appx. 843, 845 (9th Cir. 2008) (unpublished) (help with

light household chores, completing some therapeutic exercises, an brief
13

self-employment does not refute claims of disability based pain); L ·genfelter v.
Astrue, 504 F.3d 1029, 1038-39 (9th Cir. 2007) (brief, unsuccessfu attempts to

work are not inconsistent with disability).

2.

Treatment for "general maladies" is not a pr per basis to
discount the weight of a treating physician's pinion.

As Magistrate Judge Ostby correctly noted, the fact that "mo t of Dr. Sears'
treatment relates to general maladies unrelated to the allegations o disability" is an
improper basis to discount Dr. Sears' opinion. See Orn v. Astrue, 95 F.3d 625,
633 (9th Cir. 2007). On the contrary, Dr. Sears' opinion is entitle to greater
weight because the longstanding treatment relationship between He er and Dr. Sears
shows that Dr. Sears formed his opinion for treatment purposes an not simply to
facilitate obtaining benefits. Id. at 633-34; Doyal v. Barnhart, 331 F.3d 758, 763
(10th Cir. 2003).
Although Dr. Sears treated Heser's general issues like sinusi is and weight
gain, he undisputedly treated her for conditions directly related to er disability
claim for over seven years. (See AR 541-547, 637). He prescrib d her pain
medication in correspondingly increasing amounts over the same ti e frame. Id.
Because the "primary function of medical records is to promote co munication and
recordkeeping for health care personnel - not to provide evidence or disability

14

determinations," the Ninth Circuit does not require that a medical c ndition be
mentioned in every report to conclude that a physician's opinion is upported by the
record. Orn, 495 F.3d at 633 (citing 20 C.F.R. § 404.1527(d)(2)). This Court
finds that, when viewed in its entirety (rather than cherry-picked),

. Sears' records

provide ample support for the limitations he prescribed as a result
disability. The fact that he treated her for other issues only enhanc s his credibility
with regard to his assessment of her limitations.

3.

Conclusion

The two reasons the ALJ provided for rejecting Dr. Sears' o m10ns are
insufficient. The reasons are not "specific, legitimate reasons" tha are supported
by substantial evidence. In fact, as noted above, the record contra icts them. The
ALJ erred by affording Dr. Sears' opinion "little weight."

B.

The ALJ's opinion is not supported by substantial vidence.

The Commissioner asserts that Magistrate Judge Ostby erre by determining
that the ALJ's decision is not based upon substantial evidence. (D c. 15 at 12).
The Commissioner ignores severe problems with the ALJ's assess ent and
application of the evidence, however. After incorporating these p oblems into the
analysis, this Court finds that the ALJ's determination regarding H ser's disability
(or lack thereof) is not supported by substantial evidence.
15

1.

The ALJ Ignored Heser's Pain Complaints.

First, despite Heser's attorney's quantification of her case as "essentially a
pain case,"(AR 41), the ALJ ignored the requirement to carefully e aluate all
evidence bearing on the severity ofHeser's pain and give specific easons for
discounting her testimony. When medical evidence shows a pain- roducing
impairment, the Social Security Administration must evaluate the i tensity and
persistence of the pain. See Social Security Administration, "Ho

We Evaluate

Symptoms, Including Pain," 20 C.F.R. §§ 404.1529(c)(l), 416.929 c)(l); "Policy
Interpretation Ruling Titles II and XVI" Evaluation of Symptoms i Disability
Claims: Assessing the Credibility of an Individual's Statements," Social Security
Ruling 96-7p; Lingenfeller, 504 F.3d at 1035-38.
"As long as the individual has a medically determinable pai -producing
impairment, the Social Security Administration and the courts may not reject the
claimant's statements about pain solely because objective medical e idence does not
substantiate those statements." 20 C.F.R. §§ 404.1529(c)(2), 416. 29(c)(2); see
also Johnson v. Barnhart, 449 F .3 d 804, 806 (7th Cir. 2006)("The e iology of pain is

not so well understood, or people's pain thresholds so uniform, tha the severity of
pain experienced by a given individual can be 'read off from a me ical report.")
Accordingly, when a pain producing impairment exists and there is no evidence of
16

malingering, the claimant's testimony as to the degree of her pain

ay be rejected

only with "clear and convincing reasons" for rejection. Edler v. A true, 391 Fed.
Appx. 599, 600 (9th Cir. 2010).
Heser' s diagnosis of fibromyalgia qualified as a pain produc ng impairment.
Morris v. Astrue, 323 Fed. Appx. 584, 585 (9th Cir. 2009) (finding a claimant's

fibromyalgia, sleep apnea, and obesity were "impairments that cou d reasonably be
expected to produce the pain or other symptoms alleged). Dr. Sea s specifically
determined Heser had exhibited no signs of malingering, satisfying the second
element. (AR 758-60). As a result, Heser did not have to show t
impairment could be expected to cause the severity of the pain she laimed as the
ALJ suggested; she only had to show that her impairment could ca se some degree
of pain. Vasquez v. Astrue, 572 F.3d 586 (9th Cir. 2009). Nevert eless, the ALJ
discounted her pain complaints because "the medical record does n t describe the
signs and symptoms consistent with a finding of disability." (AR 3). The ALJ
erred in failing to offer "clear and convincing" reasons to reject He er' s pain claims.
2.

The ALJ Relied Upon an Improper Hypothe ical.

Another significant problem with the ALJ's nondisability fi ding was that it
was predicated, in part, on hypotheticals the ALJ presented to the ocational expert
which did not adequately reflect Heser's residual functional capaci y assessment.
17

In fact, a careful examination of the hypotheticals and the vocation
responses proves that Heser is not capable of performing her prior

expert's
ork.

"If a claimant shows that he or she cannot return to his or her revious job, the

burden of proof shifts to the [Commissioner] to show that the clai ant can do other
kinds of work." Magallnes v. Bowen, 881F.2d 747, 756 (9th Cir. 989). When the
burden shifts, the Commissioner must show that the claimant can p rform other
types of substantial, gainful work that exists in the national econo y; specific
reference should be made to realistic job opportunities. Id.
When the ALJ uses a vocational expert to meet this burden, t e ALJ may pose
hypothetical questions to the vocational expert to establish whethe someone with
the limitations that the ALJ has previously determined that the clai ant has will be
able to secure employment in the national economy. Id

Hypoth tical questions

posed to the vocational expert must set out all the limitations and r strictions of the
particular claimant. Id The vocational expert's opinion about a laimant's
residual functional capacity has no evidentiary value and is fatally awed ifthe
assumptions in the hypothetical are not supported by the record. J, . .
During Heser's second hearing, the ALJ posed a hypothetic 1 question to the
vocational expert, including the relevant portion set forth below:

18

[H]ypothetical number one is as follows --- the ability to
lk, perhaps, 15
minutes at a time, or up to four blocks at a time; stand 20-30 inutes at a time,
and be on one's feet, total, somewhere between two to fl ur hours in an
eight-hour day; sit one to two hours at a time, and at least ix hours, in an
eight-hour day; lift 20 pounds on an occasional basis, 0 pounds on a
frequent basis[.] . . . . With that set of limitations, do ou believe the
Claimant would be able to do any of her past work?
(AR 184 ). The vocational expert responded that with these limitati ns, Reser could
perform her past relevant work as a billing clerk and payroll clerk nd also met the
requirements to be an insurance agent. (AR at 185). The ALJ su mitted another
hypothetical where Reser was able to get up and alternate sitting

d standing, but

was still required to sit for eight hours a day. (Id. at 187). The v cational expert
opined the same way. (Id.) On this basis, the ALJ concluded tha Reser was not
disabled at Step 4 of the analysis because she could return to her pa t relevant work.
(AR 26). He also alternatively found at Step 5 that she was not di abled because
she could perform other jobs in the national economy as an insuran e agent. (Id.)
The ALJ erred in these determinations.
The ALJ' s hypotheticals did not accurately set out the requir ments of
Heser'sjobs as a billing or payroll clerk. In his hypotheticals, the

LJ posed a limit

of six hours of sitting in one day. (Id.). In reality, Reser' s prior

ork as a billing

clerk and payroll clerk required her to sit eight hours a day. The

omm1ss10ner

contends that the ALJ's hypotheticals were proper because they co tained "only
19

credible limitations supported by the record evidence," because the ALJ set forth six
hours of sitting in his hypothetical. (Doc. 12 at 23 ). This argum nt misses the
mark. The point is that the ALJ never elicited any testimony fro

the vocational

expert whether Heser could work at a job that required eight hours f sitting, not six.
All of the physicians involved in Heser's case, including He er's treating
physicians and also Disability Determination Services Richard Hu d, M.D., and
medical records reviewer John Cey, M.D., agreed that Heser could ot sit more than
6 hours a day. (AR 24-26). Sitting six hours a day is also consis ent with the
"light-sedentary" level of exertion determined by the ALJ. (AR 20 . The ALJ
never elicited any evidence that Heser could sit for eight hours; as

result, the

hypothetical he posed to the vocational expert for a job requiring siting eight hours a
day and relied upon by the ALJ to satisfy Steps 4 and 5 was fatally flawed.

IV.

CONCLUSION
Based on this Court's review of the transcript, and affording Dr. Sears'

opinion proper weight, the ALI' s opinion that Heser is not disable is not supported
by substantial evidence. When an ALJ's reasoning for rejecting t e claimant's
testimony and the treating physician's opinion are legally insuffici nt and it is clear
from the record that the ALJ would be required to determine the cla mantis disabled
ifhe had credited the claimant's testimony, the case must be rem ded for
20

calculation of benefits. Orn, 495 F.3d at 640. Such is the case h re. This Court
finds that the opinions ofHeser's treating physician Dr. Sears and

eser's testimony

must be credited. Thus, Heser has established that she is disabled
IT IS ORDERED that the proposed Findings and Recomme dations for
disposition of this matter entered by United States Magistrate Judg Ostby (Doc. 14)
are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Plaintiff Sharon Heser's

otion for

Summary Judgment (Doc. 11) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner's deci ion is
VACATED and this matter is REMANDED for payment ofbenefi s consistent with
this Order and the Findings and Recommendations hereby adopte . The Clerk of
Court shall enter judgment in favor ofHeser and close this case.

DATED this

Jf

'

'~

day ofNovember 2014.

. SUSANP. WATTERS
U.S. DISTRICT COURT J

21