Hungerford v. Colvin

Filing 15

ORDER. IT IS ORDERED that Hungerford's motion for summary judgment (ECF 12 ) is GRANTED and the Commissioner's decision denying SSI is REMANDED for further proceedings consistent with this opinion. Signed by Magistrate Judge Carolyn S Ostby on 8/27/2015. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 14-152-BLG-CSO

MARION E. HUNGERFORD,
SSN: XXX-XX-9182

ORDER

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant.

Plaintiff Marion E. Hungerford (“Hungerford”) seeks judicial
review of Defendant Commissioner of Social Security’s
(“Commissioner”) denial of her application for supplemental security
income (“SSI”) under Title XVI of the Social Security Act (“the Act”), 42
U.S.C. §§ 1381–1383(f). ECF 2. Having reviewed the Administrative
Record (“AR”) and the parties’ briefs, the Court will remand this matter
to the Commissioner for further proceedings.
I.

PROCEDURAL BACKGROUND
Hungerford protectively filed her claim for SSI on December 12,

2011, alleging an onset of disability as of December 31, 1995. ECF 2 at

-1-

2. She alleges she suffers from severe impairments of anxiety disorder,
PTSD, bipolar disorder, borderline personality disorder, obesity, lumbar
degenerative disc disease, and diabetes mellitus type II (ECF 2 at 2) as
well as gout, left wrist fracture, migraines, incontinence, neuropathy,
pancreatitis, abnormal liver and proximal humerus fracture. AR 23.
The Social Security Administration (“SSA”) denied Hungerford’s
applications initially and upon reconsideration. AR 13. An
Administrative Law Judge (“ALJ”) conducted a hearing and denied her
claims on June 23, 2014. AR 13–23. Hungerford sought review of the
ALJ’s decision by the Appeals Council. AR 7–8. The Appeals Council
denied Hungerford’s request for review, making the ALJ’s decision final
for purposes of judicial review. AR 1–5.
II.

STANDARD OF REVIEW
This Court’s review is limited. The Court may set aside the

Commissioner’s decision only where the decision is not supported by
substantial evidence or where the decision is based on legal error.
Garcia v. Commr. of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014) (citation
omitted); 42 U.S.C. § 405(g). “Substantial evidence is more than a mere
scintilla, but less than a preponderance.” Ryan v. Commr. of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008) (citing Bayliss v. Barnhart, 427 F.3d
-2-

1211, 1214 n.1 (9th Cir. 2005) (internal quotation marks omitted)). “It is
such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (internal quotation marks and citation
omitted).
The Court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner’s
conclusion, and cannot affirm the ALJ “by isolating a specific quantum
of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (internal quotation marks and citation omitted). The
ALJ is responsible for determining credibility, resolving conflicts in the
testimony, and resolving ambiguities in the record. Treichler v. Commr.
of Soc. Security, 775 F.3d 1090, 1098 (9th Cir. 2014) (citations omitted).
“Where the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ’s decision, the ALJ’s
conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th
Cir. 2002) (internal citation omitted).
III. BURDEN OF PROOF
A claimant is disabled for purposes of the Act if: (1) the claimant
has a medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to
-3-

last for a continuous period of not less than twelve months, and (2) the
impairment or impairments are of such severity that, considering the
claimant’s age, education, and work experience, the claimant is not only
unable to perform previous work, but the claimant cannot “engage in
any other kind of substantial gainful work which exists in the national
economy.” Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)–(B)).
In determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)–(v).
1.

The claimant must first show that he or she is not currently
engaged in substantial gainful activity. Tackett, 180 F.3d at
1098.

2.

If not so engaged, the claimant must next show that he or
she has a severe impairment. Id.

3.

The claimant is conclusively presumed disabled if his or her
impairments meet or medically equal one contained in the
Listing of Impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (hereafter “Listing of Impairments”). Id. If
the claimant’s impairments do not meet or medically equal
one listed in the regulations, the analysis proceeds to the
fourth step.

4.

If the claimant is still able to perform his or her past
relevant work, he or she is not disabled and the analysis
ends here. Id. “If the claimant cannot do any work he or she
did in the past, then the claimant’s case cannot be resolved
-4-

at [this step] and the evaluation proceeds to the fifth and
final step.” Id. at 1098-99.
5.

If the claimant is unable to perform his or her past relevant
work due to a “severe impairment (or because [he or she
does] not have any past relevant work)” the court will
determine if the claimant is able to make an adjustment to
perform other work, in light of his or her residual functional
capacity, age, education, and work experience. 20 C.F.R. §
404.1520(g). If an adjustment to other work is possible then
the claimant is not disabled. Tackett, 180 F.3d at 1099.

The claimant bears the burden of proof at steps one through four, but at
the fifth step the Commissioner bears the burden of establishing that
there is other work in significant numbers in the national economy that
the claimant can perform. Id. The Commissioner can meet this burden
via the testimony of a vocational expert or reference to the MedicalVocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2. Id. If the
Commissioner is unable to meet this burden then the claimant is
disabled and entitled to benefits. Id.
IV.

THE ALJ’S OPINION
The ALJ followed the five-step sequential evaluation process in

considering Hungerford’s claim. First, the ALJ found that Hungerford
had not engaged in substantial gainful activity since her application
date of December 12, 2011. AR 15.

-5-

At step two, the ALJ found that Hungerford has the following
severe impairments: “anxiety disorder, PTSD, bipolar disorder,
borderline personality disorder, obesity, lumbar degenerative disc
disease, and diabetes mellitus type II.” AR 15. The ALJ also noted that
Hungerford was diagnosed with gout, but found that her symptoms did
not persist for 12 months and were well managed with medication and
thus determined it was non-severe. AR 15. The ALJ found
Hungerford’s left wrist fracture in 2013 was a non-severe impairment
because her symptoms did not persist for 12 months and the fracture
healed without complication. AR 15. Next, Hungerford was
intermittently noted to experience migraines, incontinence, and
neuropathy, but the ALJ found that the medical records do not
document these symptoms persisting for 12 months and found them to
be non-severe. The ALJ noted that Hungerford had an abnormal liver
based on a CT scan but that there were no work-related limitations
documented based on this finding and concluded it was non-severe. AR
15. Finally, the ALJ found a proximal humerus fracture, x-rayed in
February 2014, was non-severe because it was in acceptable alignment,
no further complications were noted, and there were no indications of

-6-

any work-related symptoms that would persist for 12 months, as the
fracture would likely heal well within that time. AR 15.
At step three, the ALJ found that Hungerford does not have an
impairment or combination of impairments that meets or medically
equals one of the listed impairments in the Listing of Impairments. AR
16–18.
The ALJ found that Hungerford has the residual functional
capacity (“RFC”) to:
[P]erform medium work as defined in 20 CFR 416.967(c) except
she must be allowed to alternate between sitting, standing, and
walking on an occasional basis. She is limited to only occasional
contact with the public. She is limited to uninvolved work
requiring up to 3-4 step tasks, with an allowance for occasional
new learning.
AR 18.
After the ALJ found that Hungerford has no past relevant work,
AR 21, he found that Hungerford could perform jobs that exist in
significant numbers in the national economy. AR 22. He considered
Hungerford’s age on the date the application was filed (58 years old,
which is defined as an individual of advanced age), education (at least a
high school education and is able to communicate in English), work
experience, and RFC. AR 21–22. Relying on testimony from a
-7-

vocational expert (“VE”) who also considered the aforementioned
factors, the ALJ concluded that Hungerford could perform work in the
following representative occupations: vehicle cleaner and hand
packager. AR 22. Thus, the ALJ determined that Hungerford was not
disabled. AR 22.
V.

PARTIES’ ARGUMENTS
Hungerford argues that the ALJ erred by: (1) failing to support his

decision with substantial evidence in the record; and (2) ignoring
regulations and Ninth Circuit holdings. ECF 12 at 6. More specifically,
Hungerford argues that following her discharge from prison, the ALJ
improperly found her not disabled without evidence of improvement in
her condition. Id. at 18. She argues that the Commissioner failed to
present as part of the file the prior hearing and decision necessary to
evaluate Hungerford’s condition at the time of her imprisonment. Id.
Additionally, she argues the ALJ erred by: (1) ignoring the objectively
established medical conditions and evidence testified to by Hungerford
in order to find her not credible; (2) failing to consider as severe all of
Hungerford’s impairments, including gout, left wrist fracture,
migraines, incontinence, neuropathy, pancreatitis, abnormal liver and
proximal humerus fracture; (3) ignoring the evaluation by Dr. Peterson
-8-

limiting her to light work; and (4) relying on the Vocational Expert
because the hypothetical was not supported by the record and did not
reflect Hungerford’s limitations. Id. at 17–29.
In response, the Commissioner argues that the ALJ: (1) was not
required to consider medical improvement because Plaintiff’s eligibility
terminated for a non-medical reason; (2) reasonably determined which
impairments were severe within the meaning of the Act; (3) reasonably
determined that Plaintiff’s allegations of an inability to work were not
fully credible; (4) reasonably determined Plaintiff retained the residual
functional capacity to perform medium work with limitations; and (5)
reasonably relied on vocational expert testimony. ECF 13.
In reply, Hungerford argues that the ALJ erred in his credibility
determination and improperly ignored objective medical evidence of her
symptoms and her testimony of limitations. ECF 14 at 3. Hungerford
argues that although the Defendant asserts that she was malingering,
there was no record in the evidence of actual malingering, only of
malingering behavior. Id. at 14–15.
Finally, without any citation, analysis, or explanation, Hungerford
states “[t]he ALJ erred by ignoring lay witness testimony without
germane reasons.” ECF 12 at 35. No lay witness testified at
-9-

Hungerford’s hearing. AR 29–89. Defendant contends the argument
should be waived because Hungerford does not articulate which lay
witness was ignored or that there was any particular lay witness.
VI.

DISCUSSION
The primary issues before the court are whether substantial

evidence supports the ALJ’s decision, and whether the ALJ’s decision is
free of legal error. The Court is not permitted to re-weigh the evidence.
For the reasons set forth below, and applying controlling Ninth
Circuit authority, the Court finds that the Commissioner’s decision is
not based on substantial evidence in the record, and contains legal
error.
A.

ALJ’s Consideration of Medical Improvement

In 2002, Hungerford had a favorable disability hearing and
apparently received benefits until 2005, when she was sentenced to
prison. Tr. at 33; ECF 12 at 6, 13 at 3-4. Hungerford was incarcerated
from 2005 to 2011. Tr. at 36-37. Hungerford now argues that the ALJ
erred by making no finding relative to her medical condition at the time
Social Security found her disabled and because no health care provider
indicated she had any medical improvement subsequent to the date she
was last determined to be disabled. ECF 12 at 22, 31.
-10-

By regulation, a claimant’s benefits are suspended upon
incarceration and then terminated after 12 continuous months of
incarceration. 20 C.F.R. §§ 416.1325, 416.1335. Although suspended
benefits may resume upon an eligible recipient’s release from custody,
the regulations permit no such reinstatement where the claimant’s
eligibility has been terminated after 12 consecutive months of
suspension. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th Cir.
2008).
The Administrative Record shows—and Hungerford does not
dispute—that she was incarcerated longer than 12 months. AR 37. The
Administrative Record shows that Hungerford’s benefits were
terminated. AR 33. There is no presumption of continuing disability
once benefits have been terminated. Stubbs-Danielson, 539 F.3d at
1172. Thus, the ALJ was not required to make a finding of medical
improvement and did not err in this regard.
B.

ALJ’s Assessment of Hungerford’s Credibility

In Molina v. Astrue, the Ninth Circuit restated its long-held
standard for assessing a claimant’s credibility:
In assessing the credibility of a claimant’s testimony regarding
subjective pain or the intensity of symptoms, the ALJ engages in a
two-step analysis. First, the ALJ must determine whether there
-11-

is objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other
symptoms alleged. If the claimant has presented such evidence,
and there is no evidence of malingering, then the ALJ must give
specific, clear and convincing reasons in order to reject the
claimant’s testimony about the severity of the symptoms. At the
same time, the ALJ is not required to believe every allegation of
disabling pain, or else disability benefits would be available for
the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).
In evaluating the claimant’s testimony, the ALJ may use ordinary
techniques of credibility evaluation. For instance, the ALJ may
consider inconsistencies either in the claimant’s testimony or
between the testimony and the claimant’s conduct, unexplained or
inadequately explained failure to seek treatment or to follow a
prescribed course of treatment, and whether the claimant engages
in daily activities inconsistent with the alleged symptoms. While
a claimant need not vegetate in a dark room in order to be eligible
for benefits, the ALJ may discredit a claimant’s testimony when
the claimant reports participation in everyday activities indicating
capacities that are transferable to a work setting. Even where
those activities suggest some difficulty functioning, they may be
grounds for discrediting the claimant’s testimony to the extent
that they contradict claims of a totally debilitating impairment.
674 F.3d 1104, 1112–13 (9th Cir. 2012) (citations and internal
quotations omitted).
Here, the ALJ found objective medical evidence of underlying
impairments that could reasonably be expected to produce the
symptoms alleged. AR 18. To find the claimant was not entirely
credible, absent evidence of malingering, the ALJ must give specific,
clear, and convincing reasons. The Court concludes he did so, not
stopping at the evidence of malingering behavior by Hungerford.
-12-

The ALJ extensively notes the contradictions between
Hungerford’s testimony concerning the intensity, persistence, and
limiting effects of her symptoms and the extensive medical treatment
notes, which he found do not support such testimony. He also notes
inconsistencies within Hungerford’s medical records. For example,
when Hungerford first established care after her release from prison, in
September 2011, she had injured her toe, and claimed a history of
multiple psychiatric complaints, gastrointestinal complaints, and
headaches. AR 19, 441–445. The ALJ notes, however, that by October
2011, “she was in no acute distress, she had no gastrointestinal
symptoms, and her judgment and insight were intact. Thoughts and
thought content were normal, she could perform basic math, and her
mood and affect were normal.” AR 19, 457. The ALJ concluded this
demonstrated her symptoms were not as severe or persistent as alleged.
AR 19.
The ALJ also points out that although Hungerford presented for
emergent care due to alleged left ankle pain on December 8, 2011, the
imaging scans of her left foot and ankle revealed no fracture, some
tissue swelling, and evidence of post-surgical changes in the first
metatarsal. AR 19, 401. She was diagnosed with an ankle sprain or
-13-

strain, but her symptoms did not persist for the 12 month durational
requirement. AR 19, 473. On December 12, 2011, she had a full range
of motion and had no tenderness to palpation, and her mental status
exam was unremarkable. AR 484–485. One week later, she was
diagnosed with gout in her right great toe, but her symptoms were
controlled by medication and did not persist. AR 19. The ALJ supports
this conclusion with the records from January 17, 2012, when she
denied experiencing any pain and was cleared to travel from Montana
to Gillette, Wyoming. She stated she was stable on all medications and
had no acute complaints. AR 496. Thus, the ALJ found this evidence
further supported the conclusion that her allegations of disabling
symptoms near the alleged onset date were not objectively supported.
AR 19.
In March 2012, Hungerford sought care for a migraine headache
alleging she had pain equaling 10 out of a maximum of 10, but she was
noted to be in no acute distress, she was alert, and her respiratory rate
was normal. AR 19, 512. She had normal cardiopulmonary
functioning, she was fully alert, her speech was normal, and her mood
and affect were normal. She had no motor deficits and her gait was
normal. AR 512. The ALJ adds that the month prior she sought
-14-

emergent care alleging low back pain, but was noted to be pleasant,
moved fluidly from her chair to the exam table, was in no acute distress,
and had normal mood and affect—despite pain complaints equaling 8
out of a maximum of 10. AR 19, 520. The treatment notes indicated
she was released with “No restrictions to activity.” AR 521. The ALJ
found these records undermined Hungerford’s allegations of disabling
mental and physical symptoms. AR 19.
On May 11, 2012, Hungerford underwent a consultative physical
examination by Dr. Michael Doubek. AR 19–20. Dr. Doubek concluded
Hungerford’s symptoms were unsupported, and he diagnosed
malingering behavior based on the lack of objective findings, her lack of
truthfulness about her prescriptions, and her refusal to get an x-ray as
ordered. AR 19–20, 531–534. He opined that she had no symptoms or
limitations that affected her ability to perform any physical activity.
AR 20, 534. In his review of Dr. Doubek’s conclusions, the ALJ added
that, although Hungerford submitted a statement indicating she
thought Dr. Doubek was unprofessional and inappropriate, Hungerford
did not refute Dr. Doubek’s objective findings. AR 20, 536.
On June 19, 2012, Hungerford underwent an x-ray of her lumbar
spine that revealed degenerative disc disease at L2-S1, with advanced
-15-

disc degeneration at L3-L4. AR 20, 548. In finding this not disabling,
the ALJ cites findings from Dr. Doubek and other providers indicating
that Hungerford’s lumbar degeneration did not cause severe limitations
in her ability to sit, stand, walk, or lift. AR 20. In November 2012, she
was ambulating without assistance, her cardiovascular functioning was
normal. AR 20, 575. Her mood and affect were normal, and she was
pleasant. She made normal eye contact and appeared in no distress.
AR 20, 575.
In March 2013, Hungerford sought care for her claims of lower
back pain and lower extremity numbness. AR 20, 591. She was noted
to be in no acute distress, there was no alteration in her mental acuity,
attention span, or cognitive ability. Her affect seemed flat, but her
thoughts were normal. AR 592. The ALJ highlighted that although she
had some tenderness to palpation in her lumbar spine and some
diminished sensation at the L4-S1 dermatones, she ambulated
normally, joint range of motion and strength was normal, and she could
go from sitting to standing without difficulty. AR 20, 592. Hungerford
continued to receive routine and conservative pain treatment, and in
October 2013, she reported that medication was controlling her pain,
she was sleeping better, her depression was well managed, and she was
-16-

doing adequately well. AR 20, 618. The ALJ found these records all
supported a finding that her symptoms were not as severe or persistent
as she alleges. AR 20.
Even with these findings, the ALJ continues to cite other
inconsistencies in the record that do not support finding Hungerford’s
symptoms to be as severe or persistent as alleged. For example, the
ALJ explains that in February 2014, she ambulated without assistance,
made normal eye contact, had appropriate hygiene, had a normal mood,
was in no respiratory distress, was fully oriented, and had
unremarkable neurological findings. AR 21. Though Hungerford
underwent counseling for PTSD, the sessions appeared to offer only
conservative and routine treatment and the records did not indicate any
work-related symptoms or limitations. AR 20.
Based on all of these records, and the record as a whole, the ALJ
found that Hungerford was not entirely credible. AR 18–21. This Court
finds that the ALJ provided clear and convincing reasons for finding
Hungerford to be not entirely credible in her statements concerning the
intensity, persistence, and limiting effects of her symptoms.

-17-

C.

ALJ’s Assessment of Hungerford’s RFC

In evaluating Hungerford’s claims, the ALJ was required to “make
fairly detailed findings in support” of his decision “to permit courts to
review th[at] decision[ ] intelligently.” Vincent v. Heckler, 739 F.2d
1393, 1394 (9th Cir. 1984) (citation omitted). In doing so, an “ALJ does
not need to discuss every piece of evidence” and “is not required to
discuss evidence that is neither significant nor probative[.]” Howard ex
rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (internal
quotations and citations omitted). But a court only reviews “the reasons
provided by the ALJ in the disability determination and may not affirm
the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2003). In deciding whether to accept or reject
opinions of doctors, the ALJ “must do more than offer his conclusions.
He must set forth his own interpretations and explain why they, rather
than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 422 (9th
Cir. 1988).
The ALJ found Hungerford has the RFC to perform medium work
with limitations. AR 18. Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up
to 25 pounds. 20 C.F.R. § 416.967 (c). The regulations require that in
-18-

determining RFC, the ALJ must consider the limiting effects of all
impairments even those that are not severe (20 C.F.R. § 416.945(e)),
and the ALJ has the responsibility for developing the medical record.
20 C.F.R. § 416.945(a)(3). But nowhere did the ALJ explain what
substantial evidence supported his specific conclusion that Hungerford
could perform medium work. And, if Hungerford could only perform
sedentary or light work, if appears that the regulations may require a
finding that she is disabled. See 20 C.F.R. § 416.968(d)(4).
The ALJ discussed the physical examination administered in May
2012 by Dr. Michael Doubek. As noted, Dr. Doubek diagnosed
malingering behavior, and concluded that Hungerford could “sit, stand,
and walk normally.” Tr. at 20, 533. He continued: “There is no
restriction of seeing, hearing, talking, pushing, pulling, stooping,
sitting, standing, walking, or going up or down stairs.” Id. at 534. But
Dr. Doubek did not opine that Hungerford could do medium work. He
concluded instead that “light work is expected to be easily
accomplished.” The ALJ did not explain his basis for concluding that
Hungerford could perform medium work, even though the consultative
examiner concluded that she could perform light work.

-19-

In December 2013, Hungerford underwent a consultative exam for
the State agency. The exam was conducted by Dr. Dale Peterson, a
non-treating consultative examiner, who concluded that Hungerford
was limited to sedentary work activity. TR. at 21. Dr. Peterson
concluded that Hungerford could never lift more than 11 pounds and
could only occasionally lift up to 10 pounds. Tr. at 631. This finding is
consistent with Hungerford’s testimony that, while she was in prison,
she was restricted to lifting less than 15 pounds. Tr. at 38. If these
findings were accepted, Hungerford could not perform medium work.
The ALJ did not specifically explain why he rejected Dr. Peterson’s
lifting restrictions.
The ALJ cited no finding in the record that Hungerford could
perform the lifting requirements of medium work. The ALJ apparently
rejected, without explanation, the findings of Dr. Peterson and Dr.
Doubek in this regard, and concluded Hungerford could perform a
higher RFC than provided for by any medical evidence cited in his
decision. Although his RFC was consistent with the State Agency
findings, AR 97, 109, the ALJ did not rely on that evidence in
concluding Hungerford could perform medium work with limitations.
Accordingly, the Court concludes the ALJ erred by not supporting his
-20-

decision with substantial evidence in the record. In a similar case,
Thompson v. Astrue, 2010 WL 3239342 (D. Ore. 2010), the court
concluded that the ALJ “cited no medical evidence of record or examples
of plaintiff’s daily activities to support the finding that she can perform
medium work” and “[a]bsent citation to specific evidence in the record
supporting the ability to perform medium [work], the ALJ’s disability
determination cannot be upheld.” Id. * 1.
D.

ALJ’s Consideration of Vocational Expert’s Opinion

If a claimant shows that he or she cannot return to previous work,
the burden of proof shifts to the Secretary to show that the claimant can
do other kinds of work. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988). Hypothetical questions posed to the vocational expert must set
out all the limitations and restrictions of the particular claimant. Id. If
the assumptions in the hypothetical are not supported by the record,
then the VE’s opinion that the claimant has a residual working capacity
has no evidentiary value. Id.
Hungerford argues that the ALJ erred in failing to include in his
hypothetical question to the vocational expert all of Hungerford’s
limitations. ECF 12 at 35. As discussed above, the Court has already
determined that the ALJ failed to base his decision on substantial
-21-

evidence in the record. The hypothetical posed to the VE included an
RFC of medium work with limitations. But because the hypothetical is
not supported by substantial evidence in the record, it cannot be relied
upon by the ALJ. Hunt v. Colvin, 954 F.Supp.2d 1181, 1195 (W.D.
Wash. 2013). Accordingly, the Court finds that the ALJ did not meet
his burden at step five and could not rely on the testimony of the VE.
E.

Whether to Remand or Reverse

The decision whether to remand for further proceedings or for an
immediate award of benefits is within the Court’s discretion. Harman
v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an award of
benefits is appropriate if there is no useful purpose to be served by
further proceedings or if the record is fully developed. Strauss v.
Commissioner, 635 F.3d 1135, 1138–39 (9th Cir. 2011). The Court
should remand for an award of benefits if: (1) the ALJ has failed to
provide legally sufficient reasons for rejecting such 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. Harman, 211 F.3d at 1178.

-22-

Based on the errors made by the ALJ, the Court concludes that
further proceedings would be useful. It is not clear from the record that
the ALJ would be required to find the claimant disabled if he properly
credited all evidence and considered the entirety of the record. He did
not provide substantial evidence in his decision, but that is not to say
his decision could not have been supported by further proceedings or
from other evidence in the record.
VII. CONCLUSION
Based on the foregoing, IT IS ORDERED that Hungerford’s
motion for summary judgment (ECF 12) is GRANTED and the
Commissioner’s decision denying SSI is REMANDED for further
proceedings consistent with this opinion.
The Clerk of Court shall enter Judgment accordingly and close
this case.
DATED this 27th day of August, 2015.
/s/ Carolyn S. Ostby
United States Magistrate Judge

-23-