Jackson v. Berryhill

Filing 19

ORDER re 11 Motion for Summary Judgment. 1. Mr. Jackson's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. 2. Mr. Jackson's claim is remanded to the Commissioner with instructions to have the ALJ discuss whether Mr. Jac kson has the ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis as required by SSR 96-8ps, and to have the ALJ determine whether Mr. Jackson is entitled to benefits based upon that discussion. Signed by Magistrate Judge John Johnston on 12/19/2017. (ACC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
RAY LOUIS JACKSON,

CV 17-21-GF-JTJ

Plaintiff,

ORDER

vs.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Plaintiff Ray Jackson (Mr. Jackson) appeals the final decision of the
Commissioner of the Social Security Administration (Commissioner) denying his
application for Disability Insurance Benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-433, after a hearing before an administrative law judge
(ALJ). For the reasons set forth below, Mr. Jackson’s Motion for Summary
Judgment is granted in part and denied in part, and his claim is remanded to the
1

Commissioner to have the ALJ discuss whether Mr. Jackson has the ability to
perform sustained work activities in an ordinary work setting on a regular and
continuing basis.
I. FACTS AND PROCEDURAL HISTORY
Ray Louis Jackson brings this action under 42 U.S.C. § 405(g) seeking
judicial review of the decision of the Commissioner denying his application for
disability benefits. Mr. Jackson filed his application for disability insurance
benefits on February 21, 2014, alleging a disability onset date of May 15, 2007
(Doc. 7 at 140). Mr. Jackson’s claimed that the following conditions limit his
ability to work: hypopituitarism, narcolepsy, depression, peripheral neuropathy,
high blood pressure, acid reflux, pre-diabetic, and atrial fibrillation.” (Id. at 158).
Mr. Jackson’s date last insured is December 31, 2013. (Id. at 151). Mr. Jackson’s
date of birth is February 12, 1958. Mr. Jackson was 56 years old when he filed his
application for benefits and he is currently 59 years old. (Id. at 65).
Mr. Jackson’s claim was denied initially and on reconsideration, and he filed
a timely request for a hearing before an ALJ. (Doc. 7 at 97). An ALJ conducted a
hearing on May 14, 2015, (Id. at 30-63) and later denied Mr. Jackson’s application
for benefits in a July 10, 2015 decision. (Id. at 11-29).
Mr. Jackson timely requested that the Commissioner review the ALJ’s
2

decision on September 14, 2015. (Id. at 10). The Appeals Council for the
Commissioner denied Mr. Jackson’s request for review on January 11, 2017,
making the ALJ’s decision the Commissioner’s “final decision.” (Id. at 1-9).
Mr. Jackson timely filed a complaint on March 14, 2017, seeking judicial
review of the Commissioner’s decision. (Doc. 1). The Court has jurisdiction over
this action pursuant to 42 U.S.C. § 405(g). The parties consented to the
undersigned conducting all further proceedings in this matter. (Doc. 9). The Great
Falls Division of the District of Montana is the proper venue because Mr. Jackson
resides in Cascade County, Montana. (Doc. 1 at 2); 42 U.S.C. 405(g); Local Rule
1.2(c)(2).
Mr. Jackson filed an opening brief on July 14, 2017, requesting that the
Court reverse the Commissioner’s decision and remand for an immediate award of
benefits or, in the alternative, remand for a further hearing. (Doc. 12). The
Commissioner filed a response brief on August 18, 2017. (Doc. 13). Mr. Jackson
filed a reply brief on August 28, 2017. (Doc. 14). The motion is ripe for decision.
II.

STANDARD OF REVIEW

The 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. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
3

(9th Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006). Substantial evidence has also been described as “more than a mere
scintilla” but “less than a preponderance.” Desrosiers v. Sec. of Health and Hum.
Services, 846 F.2d 573, 576 (9th Cir. 1988).
“The ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold the Commissioner's findings
“if supported by inferences reasonably drawn from the record.” Batson v. Comm’r
of SSA, 359 F.3d 1190, 1193 (9th Cir. 2004). “[I]f evidence exists to support more
than one rational interpretation,” the Court “must defer to the Commissioner's
decision.” Id. at 1193 (citing Morgan v. Comm’r, 169 F.3d 595, 599 (9th Cir.
1999)). This Court “may not substitute its judgment for that of the
Commissioner.” Widmark, 454 F.3d at 1070 (quoting Edlund, 253 F.3d at 1156).
Where 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).
The Court must consider the record as a whole, weighing both the evidence
4

that supports and detracts from the Commissioner’s conclusion. Green v. Sheckler,
803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the findings not
supported by the record, but it may not substitute its findings for those of the
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
III. BURDEN OF PROOF
A claimant is disabled for purposes of the Social Security Act if the claimant
demonstrates by a preponderance of the evidence that (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 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 also
cannot “engage in any other kind of substantial gainful work which exists in the
national economy.” Schneider v. Comm’r of SSA, 223 F.3d 968, 974 (9th Cir.
2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).
The Commissioner’s regulations provide a five-step sequential evaluation
process for determining whether a claimant is disabled. Bustamante v. Massanari,
262 F.3d 949, 953 (9th Cir. 2001); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden of proof at steps one through four, and the Commissioner bears
5

the burden of proof at step five. Id. at 954. The five steps of the inquiry are:
1.

Is the claimant presently working in a substantially gainful
activity? If so, the claimant is not disabled within the meaning
of the Social Security Act. If not, proceed to step two. See 20
C.F.R. §§ 404.1520(b), 416.920(b).

2.

Is the claimant’s impairment severe? If so, proceed to step
three. If not, the claimant is not disabled. See 20 C.F.R. §§
404.1520(c), 416.920(c).

3.

Does the impairment “meet or equal” one of a list of specific
impairments described in 20 C.F.R. Part 220, Appendix 1? If
so, the claimant is disabled. If not, proceed to step four. See 20
C.F.R. §§ 404.1520(d), 416.920(d).

4.

Is the claimant able to do any work that he or she has done in the past?
If so, the claimant is not disabled. If not, proceed to step five. See 20
C.F.R. §§ 404.1520(e), 416.920(e).

5.

Is the claimant able to do any other work? If so, the claimant is not
disabled. If not, the claimant is disabled. See 20 C.F.R. §§
404.1520(f), 416.920(f).

Id.
IV. BACKGROUND
A.

ALJ’s determination

At step one, the ALJ determined that Mr. Jackson had not engaged in
substantial gainful activity since May 15, 2007, the alleged onset date, through his
date last insured of December 31, 2013. (Doc. 7 at 16). At step two, the ALJ found
that Mr. Jackson has the following severe impairments: narcolepsy and peripheral
6

neuropathy. (Id. at 16). At step three, the ALJ found that Mr. Jackson did not have
an impairment, or combination of impairments, that met or was medically equal to
one of the listed impairments. (Id. at 18).
Before considering step four, the ALJ assessed Mr. Jackson as having had
the residual functional capacity (RFC), through the date last insured, to lift, carry,
push and pull ten pounds frequently and twenty pounds occasionally; walk and
stand six hours in an eight hour workday and sit six hours in an eight hour day;
frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never
climb ladders, ropes or scaffolds; and needed to avoid concentrated exposure to
extreme temperatures and all hazards, including wet, slippery, uneven surfaces,
unprotected heights, and dangerous machinery. (Id. at 18-19).
At step four, the ALJ determined that with his RFC, Mr. Jackson was
capable of performing past relevant work as a teacher-trainer/department head
through his date last insured. (Id. at 23). Therefore, the ALJ determined that Mr.
Jackson has not been under a disability since May 15, 2007, the claimed onset date
of his disability, through December 31, 2013, the date last insured. (Id.).
B.

Mr. Jackson’s Position

Mr. Jackson argues the Court should reverse the Commissioner’s decision
and remand the case to the Commissioner for the immediate award of benefits or
7

further hearing because:
1.

The ALJ erred in disregarding Mr. Jackson’s testimony concerning
pain, fatigue, and limitations because the reasons the ALJ provided for
doing so are not supported by substantial evidence. (Doc. 12 at 7-12);

2.

The ALJ erred in determining that the Claimant has the residual
functional capacity to perform substantial gainful activity because this
determination is not supported by substantial evidence. (Doc. 12 at
13-16).

C.

The Commissioner’s Position

The Commissioner argues that the Court should enter summary judgment in
her favor because:
1.

The ALJ determination that Mr. Jackson’s allegations of total
disability were not credible was not erroneous because it is supported
by substantial evidence. (Doc. 13 at 4-13);

2.

The ALJ’s RFC for Mr. Jackson was not erroneous because it is
supported by substantial evidence. (Id. at 13-14).
V. ANALYSIS

A.

The ALJ’s Credibility Determination

An ALJ engages in a two-step analysis to determine whether a claimant's
testimony regarding subjective pain or symptoms is credible. “First, the ALJ must
determine whether the claimant has presented objective medical evidence of an
underlying impairment ‘which could reasonably be expected to produce the pain or
other symptoms alleged.’ ” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)
8

(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). In this
analysis, the claimant is not required to show “that her impairment could reasonably
be expected to cause the severity of the symptom she has alleged; she need only show
that it could reasonably have caused some degree of the symptom.” Smolen v. Chater,
80 F.3d 1273, 1282 (9th Cir. 1996). Nor must a claimant produce “objective medical
evidence of the pain or fatigue itself, or the severity thereof.” Garrison, 759 F.3d at
1014.
If the claimant satisfies the first step of this analysis, and there is no evidence
of malingering, “the ALJ can reject the claimant's testimony about the severity of [the
claimant’s] symptoms only by offering specific, clear and convincing reasons for
doing so.” Id. at 1014-1015 (citing Smolen, 80 F.3d at 1281); see also Robbins v. SSA,
466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering
based on affirmative evidence thereof, he or she may only find an applicant not
credible by making specific findings as to credibility and stating clear and convincing
reasons for each.”). This is not an easy requirement to meet: “The clear and
convincing standard is the most demanding required in Social Security cases.”
Garrison, 759 F.3d at 1015 (citing Moore v. Comm'r of SSA, 278 F.3d 920, 924 (9th
Cir. 2002). 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
9

plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Id. (citing Fair v. Bowen, 885 F.2d
597, 603 (9th Cir. 1989)).
When evaluating a claimant's subjective symptom testimony, the ALJ must
specifically identify what testimony is not credible and what evidence undermines the
claimant's complaints; general findings are insufficient. Smolen, 80 F.3d at 1284;
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988). As set forth in SSR 96-7p, it
is not enough that “reasons” are provided–they must be clearly expressed and
convincing in the sense that they are based on the record.
When evaluating a claimant’s credibility, the ALJ may consider “ordinary
techniques of credibility evaluation,” including a claimant's reputation for
truthfulness, inconsistencies in testimony or between testimony and conduct, daily
activities, work record, and testimony from physicians and third parties concerning
the nature, severity, and effect of the alleged symptoms. Thomas v. Barnhart, 278
F.3d 947, 958-59 (9th Cir. 2002) (citing Light v. SSA, 119 F.3d 789, 792 (9th Cir.
1997)). If the ALJ's credibility finding is supported by substantial evidence in the
record, the Court may not engage in second-guessing. Id. (citing Morgan v. Comm’r
of SSA, 169 F.3d 595, 600 (9th Cir. 1999)).
Mr. Jackson argues that the ALJ’s adverse credibility determination is
erroneous because the following reasons given for discounting his symptom testimony
10

were not supported by substantial evidence: (a) Mr. Jackson’s inconsistent statements;
(b) Mr. Jackson failing to undergo a polysomnogram as recommended by his
physician and gaps in his treatment; (c) Mr. Jackson’s activities of daily living.
1.

Inconsistent Statements

The ALJ discredited Mr. Jackson’s symptom testimony because she found
numerous inconsistencies in his testimony. Mr. Jackson’s statement that he could not
concentrate (Doc. 5 at 198) was inconsistent with Mr. Jackson writing a white paper
for work in 2009 (Id. at 37); Mr. Jackson’s statement that he did not stay in touch with
his family (Id. at 198) was inconsistent with his statement that he sees his son every
couple of weeks (Id. at 197); and Mr. Jackson’s statement that he isolates himself and
tries to avoid people (Id. at 198) is inconsistent with his reports to a medical provider
that he was volunteering at a university helping with a basketball team and giving
talks to students (Id. at 607, 609).
Mr. Jackson argues that he testified that the white paper was something “he
could only do when he could do it, and there were times he could not do it because of
being unable to concentrate or actually falling asleep” and therefore this limited
activity “is not inconsistent with disability.” (Doc. 12 at 9). In relation to staying in
touch with his family, Mr. Jackson argues that there was an intervening “falling out”
between he and his son and as such both statements may have been true at different
11

times and further, that whether he was in touch with his son “does not have a bearing
on [his] report of symptoms.” (Doc. 14 at 6). Finally, in relation to helping with the
basketball team and giving talks to students, Mr. Jackson argues that Dr. Anderson,
his physician who made the notes reflecting these activities, made the notes as a result
of a misunderstanding about a conversation Mr. Jackson had with the basketball coach
at the university. (Doc. 12 at 9).
The Court determines that there is substantial evidence supporting the ALJ
discrediting Mr. Jackson’s symptom testimony based upon these inconsistencies.
Initially, in relation to the white paper, Mr. Jackson reported that he could not
concentrate yet he was, in fact, able to write the white paper, which required
concentration to complete.
Next, Mr. Jackson reported in the same “Function Report - Adult” form that he
and his attorney completed on August 27, 2014, that he was isolated from his family
and also that he was “seeing his son every two weeks.” (Doc. 5 at 196, 198, 200). At
the May 14, 2015 hearing before the ALJ, Mr. Jackson testified he and his son had a
falling out after Mr. Jackson had moved to Montana in 2010. (Id. at 47-48). The
Court concludes that the substantial evidence supports the ALJ’s determination that
Mr. Jackson’s statements about his contact with his son was inconsistent.
Furthermore, the Court determines that ALJ rationally viewed Mr. Jackson’s
12

inconsistent statements about his contact with his son as having a bearing on Mr.
Jackson’s report of symptoms because the Function Report-Adult in which Mr.
Jackson provided these inconsistent answers was inquiring about whether there had
been “any changes in activities since the illnesses, injuries or conditions began.” (Id.
at 198).
Finally, although Mr. Jackson testified that Dr. Anderson was mistaken about
what transpired between him and the university basketball coach, the ALJ is not
required to accept his explanation as true because the ALJ is tasked with resolving
conflicts in the evidence. Furthermore, Dr. Anderson made two separate entries on
two separate dates about Mr. Jackson helping with the basketball team and giving
talks to students. Dr. Anderson’s first entry was made on November 23, 2010, and it
states that “[Mr. Jackson] also has been asked to do some volunteer work helping
coach the University of Great Falls basketball team.” (Id. at 607). Dr. Anderson’s
next entry was on February 14, 2011, and it states that “He is doing some volunteer
work for the University of Great Falls helping with the basketball team and giving
some talks to students.” (Id. at 609). Although Mr. Jackson claims Dr. Anderson is
mistaken, there is substantial evidence supporting the ALJ’s determination that Mr.
Jackson’s statements to Dr. Anderson were inconsistent with his statement that he
isolates himself and tries to avoid people.
13

2.

Activities of Daily Living

The ALJ determined that Mr. Jackson’s report of being able to perform
“activities of daily living” undermined his credibility. (Doc. 7 at 22). Mr. Jackson
argues that it was error for the ALJ to do so because the ALJ failed to make specific
findings related to the daily activities and their transferability to the workplace. (Doc.
12 at 12)
A review of the ALJ’s decision reveals that the ALJ found that Mr. Jackson’s
daily activities demonstrated “a good ability to act appropriately and communicate
effectively in both personal and social situations,” and his activities further
demonstrated that he was able to engage in activities that required “good
concentration, persistence, and pace such as driving, using a computer, independently
managing his finances, applying for technical jobs, and writing a paper.” (Doc. 7 at
22). The Court determines that the ALJ did not err because the activities the ALJ
described are supported by substantial evidence, and they contradict Mr. Jackson’s
statements of being isolated, being unable to sustain any activity, being unable to
concentrate, and being unable to complete tasks. Orn v. Astrue, 495 F.3d 625, 639
(9th Cir. 2007) (daily activities may form the basis of an adverse credibility
determination where the claimant’s activities contradict his other testimony).
14

3.

Polysomnogram

The ALJ also determined that Mr. Jackson’s failure to undergo a
polysomnogram as a physician suggested was a reason for rejecting Mr. Jackson’s
credibility. (Id. at 21). The ALJ stated that “[i]f his symptoms of fatigue, falling
asleep so easily, and inability to sustain any activity were as severe and limiting as he
had alleged, one would expect that he would have found a way to follow up with
treatment recommendations.” (Id.).
SSR 96-7 provides that an ALJ “must not draw any inference about an
individual’s symptoms and functional effects from a failure to seek or pursue regular
medical treatment with first considering any explanations . . . that may explain . . .
failure to seek medical treatment.” The inability to pay is one such explanation. SSR
96-7. Mr. Jackson argues that the ALJ erred because she failed to consider Mr.
Jackson’s explanation for not undergoing the polysomnogram.
The ALJ brushed aside Mr. Jackson’s explanation of limited finances for not
undergoing the polysomnogram by stating that “one would expect that he would have
found a way to follow up with treatment recommendations.” The ALJ did not
articulate how Mr. Jackson “would have found a way” to pay for the polysomnogram
and the ALJ also cited no evidence from which it could be inferred that Mr. Jackson
“would have found a way” to pay for the polysomnogram. Therefore, the Court
15

concludes that substantial evidence does not support this reason for discrediting Mr.
Jackson’s symptom testimony. However, because substantial evidence did support
the ALJ’s findings of “inconsistent statements” and “activities of daily living” as
reasons for discrediting Mr. Jackson’s symptom testimony, this error was harmless.
See Batson v. Comm'r of SSA, 359 F.3d 1190, 1197 (9th Cir. 2004) (concluding that,
even if the record did not support one of the ALJ's reasons for disbelieving a
claimant's testimony, the error was harmless where the record supported other
reasons).
B.

The ALJ’s Assessment of Mr. Jackson’s RFC
1.

Ability to Sustain Work Activities

SSR 96-8p provides that in assessing a claimant’s RFC the ALJ “must discuss
the individual’s ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e. eight hours per day, for five days per
week, or an equivalent work schedule).” Mr. Jackson argues that the ALJ erred in
failing to provide such a discussion in her decision and further erred in assessing his
RFC because substantial evidence fails to support a finding that he can perform
sustained work activities. (Doc. 12 at 13-14). The Commissioner did not address Mr.
Jackson’s argument that the ALJ failed to discuss Mr. Jackson’s ability to perform
sustained work activities as SSR 96-8p requires, but rather argued that the ALJ’s RFC
16

assessment was not erroneous because it is supported by substantial evidence. (Doc.
13 at 13-14).
SSRs, according to the governing regulations, “are binding on all components
of the Social Security Administration” and “represent precedent final opinions and
orders and statements of policy and interpretations” of the SSA. 20 C.F.R. §
402.35(b)(1); see also Heckler v. Edwards, 465 U.S. 870, 873 n. 3, 104 S.Ct. 1532
(1984) (noting the function of SSRs). “SSRs reflect the official interpretation of the
[SSA] and are entitled to ‘some deference’ as long as they are consistent with the
Social Security Act and regulations.” Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th
Cir. 2006) (quoting Ukolov v. Barnhart, 420 F.3d 1002, 1005 n. 2 (9th Cir. 2005)).
SSRs do not carry the “force of law,” but they are binding on ALJs nonetheless. See
Quang Van Han v. Bowen, 882 F.2d 1453, 1457 & n. 6 (9th Cir. 1989).
Here, the ALJ’s decision fails to provide any discussion of Mr. Jackson’s ability
to perform sustained work activities in an ordinary work setting on a regular and
continuing basis as SSR 96-8p requires, and the failure to do so constitutes legal error.
2.

Combined Effect of Mr. Jackson’s Impairments

Mr. Jackson argues that the ALJ failed to consider the combined effect of his
multiple impairments in assessing his RFC. (Doc. 12 at 14-15). The Commissioner
agues that the ALJ considered all of Mr. Jackson’s impairments that she found to be
17

credible in assessing his RFC. (Doc. 13 at 13-14).
A review of the record reveals that the ALJ considered Mr. Jackson’s claimed
impairments and determined the extent to which they were credible and consistent
with the objective medical evidence and based upon these determinations assessed Mr.
Jackson’s RFC. (Doc. 5 at 19-23). Although Mr. Jackson would have assessed the
evidence differently than did the ALJ, that does not establish error. Rather, the test
is whether substantial evidence supports the ALJ’s assessment of Mr. Jackson’s RFC.
The Court determines that it does because there are numerous conflicts in the evidence
concerning the limiting effect of Mr. Jackson’s credible impairments. As such, the
ALJ did not err in considering the combined effect of Mr. Jackson’s impairments.
3.

Record as a Whole

Mr. Jackson argues that the ALJ failed to consider the record as a whole, but
rather mischaracterized the evidence to justify her assessment that Mr. Jackson’s RFC
rendered him able to perform past relevant work. (Doc. 12 at 16). The Commissioner
argues that the ALJ’s RFC assessment is supported by substantial evidence and the
ALJ should therefore be affirmed. (Doc. 13 at 13-14).
The Court determines that the record as a whole contains evidence that both
supports and detracts from Mr. Jackson’s claim that he is disabled, and that substantial
evidence supports the ALJ’s assessment of Mr. Jackson’s RFC.
18

C.

Remand for Further Administrative Proceedings

As discussed above, the ALJ committed legal error when she failed to discuss
whether, as SSR 96-8p requires, Mr. Jackson has the ability to perform sustained work
activities in an ordinary work setting on a regular and continuing basis. Mr. Jackson
argues that his claim should therefore be remanded to the Commissioner with
instructions to award him benefits. (Doc. 12 at 16-17). The Commissioner argues that
because there are serious questions about whether Mr. Jackson is disabled the Court,
if determines there was error, should remand for further proceedings.
When the ALJ denies benefits and the court finds error, the court ordinarily
must remand to the agency for further proceedings before directing an award of
benefits. Leon v. Berryhill, 874 F.3d 1130, 1132-33 (9th Cir. 2017) (citing Treichler
v. Comm’r of SSA, 775 F.3d 1090, 1099 (9th Cir. 2014). Where an ALJ improperly
rejects a claimant's pain testimony as incredible without providing legally sufficient
reasons, the reviewing court may grant a direct award of benefits when certain
conditions are met. Id. Here, the Court has not determined that the ALJ erred in
rejecting Mr. Jackson’s testimony. Rather, the Court has determined that the ALJ
erred in failing to provided the discussion SSR 96-8p requires. Therefore, remand for
further administrative proceedings is the appropriate remedy as opposed to instructing
the Commissioner to award Mr. Jackson benefits.
19

VII. CONCLUSION
The ALJ committed legal error in failing to discuss in her decision whether Mr.
Jackson has the ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis as SSR 96-8p requires.
Therefore, the undersigned issues the following:
ORDER
1.

Mr. Jackson’s Motion for Summary Judgment is GRANTED IN PART
AND DENIED IN PART.

2.

Mr. Jackson’s claim is remanded to the Commissioner with instructions
to have the ALJ discuss whether Mr. Jackson has the ability to perform
sustained work activities in an ordinary work setting on a regular and
continuing basis as required by SSR 96-8ps, and to have the ALJ
determine whether Mr. Jackson is entitled to benefits based upon that
discussion.

Dated this 19th day of December, 2017.

20