Berry v. Commissioner Social Security Administration
Filing
16
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 28 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. IT IS SO ORDERED. See attached order for further details. Signed on 6/11/19 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
VALERIE JOAN B.,1
Plaintiff,
2:18-cv-00956-BR
OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
KATHLEEN R. DENT
Davis Wright Tremaine, LLP
1300 S.W. Fifth Avenue
Suite 2400
Portland, OR 97201-5630
(503) 778-5338
DANIEL S. JONES
Law Offices of Charles E. Binder and Harry J. Binder, LLP
485 Madison Avenue
Suite 501
New York, NY 10022
(212) 677-6801
Attorneys for Plaintiff
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental party.
1 - OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1021
MICHAEL W. PILE
Acting Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2531
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Valerie Joan B. seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.
For the reasons that follow, the Court REVERSES the
Commissioner's decision and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on July 8, 2014,
2 - OPINION AND ORDER
alleging a disability onset date of June 1, 2014.
Tr. 370-71.1
The application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on March 24, 2017.
Tr. 235-59.
attorney.
At the hearing Plaintiff was represented by an
Plaintiff and a vocational expert (VE) testified.
The ALJ issued a decision on May 17, 2017, in which she
found Plaintiff was not disabled before her December 31, 2016,
date last insured and, therefore, is not entitled to benefits.
Tr. 35-54.
Pursuant to 20 C.F.R. § 404.984(d), that decision
became the final decision of the Commissioner on March 27, 2018,
when the Appeals Council denied Plaintiff's request for review.
Tr. 4-9.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on May 29, 1963, and was 53 years old at
the time of the hearing.
Associates Degree.
Tr. 370.
Tr. 428.
Plaintiff completed an
The ALJ found Plaintiff has past
relevant work experience as a front-desk clerk and janitor.
Tr. 45.
Plaintiff alleges disability during the relevant period due
to back pain, leg pain, fibromyalgia, and depression.
Tr. 260.
Except when noted, Plaintiff does not challenge the ALJ’s
1
Citations to the official transcript of record filed by
the Commissioner on November 2, 2018, are referred to as "Tr."
3 - OPINION AND ORDER
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 43-45.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
4 - OPINION AND ORDER
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
"It is more than a mere scintilla [of
evidence] but less than a preponderance."
Id. (citing Valentine,
574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 404.1520.
5 - OPINION AND ORDER
Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 404.1520(a)(4)(I).
See also Keyser v.
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
6 - OPINION AND ORDER
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff did not engage in
7 - OPINION AND ORDER
substantial gainful activity (SGA) from her June 1, 2014, alleged
onset date through her December 31, 2016, date last insured.
Tr. 40.
At Step Two the ALJ found Plaintiff had the severe
impairments of degenerative disc disease of the lumbar spine,
fibromyalgia, obesity, depression, and anxiety during the
relevant period.
Tr. 40.
The ALJ found Plaintiff’s impairment
of hypertension was nonsevere during the relevant period.
The
ALJ also found Plaintiff’s intracranial aneurysm was not a
medically determinable impairment during the relevant period.
Tr. 41.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments during the relevant period did not meet
or medically equal one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1.
Tr. 21.
The ALJ found
Plaintiff had the RFC to perform light work during the relevant
period with the following limitations:
Plaintiff could lift and
carry 20 pounds occasionally; could lift and carry 10 pounds
frequently; could stand and/or walk for two hours in an eighthour workday; could sit for six hours in an eight-hour workday;
could occasionally stoop, kneel, crouch, crawl, and climb ramps
or stairs; could understand and carry out simple instructions;
and could have “no more than occasional interaction with the
general public, coworkers, and supervisors.”
8 - OPINION AND ORDER
Tr. 42.
At Step Four the ALJ found Plaintiff was unable to perform
her past work during the relevant period.
Tr. 45.
At Step Five the ALJ found Plaintiff could perform other
work that existed in the national economy during the relevant
period.
Accordingly, the ALJ concluded Plaintiff was not
disabled from June 1, 2014, through December 31, 2016.
Tr. 47.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) partially
rejected Plaintiff’s testimony; (2) partially rejected the
opinion of Christina Bright, M.D., treating rheumatologist; and
(3) failed to include all of Plaintiff’s limitations in her
hypothetical to the VE.
I.
The ALJ did not err when she partially rejected Plaintiff’s
testimony.
Plaintiff alleges the ALJ erred when she partially rejected
Plaintiff’s testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cotton, 799 F.2d 1403 (9th Cir.
1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.
1991).
The claimant, however, need not produce objective medical
9 - OPINION AND ORDER
evidence of the actual symptoms or their severity.
Smolen, 80
F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
Plaintiff testified at the hearing that during the relevant
period she could walk a block and then would have to rest because
her back ached and started to burn and her legs would “give out.”
Tr. 249-50.
Plaintiff stated she would have “weird shooting
pains that come in . . . the middle of [her] hips and it has
literally knocked me down.”
Tr. 250.
Plaintiff testified she
fell to the ground at least once a week.
Plaintiff noted during
the relevant period she cleaned her apartment, did her laundry,
and did her grocery shopping.
enough to cook a meal.
Plaintiff could not stand up long
Tr. 254.
Plaintiff stated she and her
husband divorced even though they have a fairly good
relationship, but she could not live with him any longer because
“the more pain [she was] in, the nastier [she] g[ot].”
10 - OPINION AND ORDER
Tr. 252.
Plaintiff often yelled at her ex-husband and other people and had
“a really hard time controlling [her] emotions.”
Tr. 252.
Plaintiff did not have medical insurance for almost one year
during the relevant period, but she began receiving counseling
and taking medications when she was put on the Oregon Health
Plan.
Plaintiff testified the medications, however, did not help
with her mental-health issues.
Plaintiff stated she was suicidal
and/or homicidal during the relevant period.
Plaintiff did not
have any desire to be around people because she got “super, super
anxious around people.”
Tr.
254.
Plaintiff, however,
interacted with her ex-husband and sister regularly.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to produce some of
[Plaintiff’s] alleged symptoms” during the relevant period, but
Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not entirely consistent
with the medical evidence and other evidence in the record.”
Tr. 43.
Specifically, the ALJ found the record does not support
the severity of Plaintiff’s back-impairment symptoms during the
relevant period.
The ALJ noted Plaintiff’s June 2014 MRI of her
lumbar spine showed minimal degenerative facets at L2-L3; minimal
disc bulging with mild degenerative facets at L3-L4; and a mild
disc bulge, mild right neural foraminal narrowing, and moderate
left neural foraminal narrowing with a “small synovial cyst
11 - OPINION AND ORDER
projecting from the left facet” at L4-L5.
Tr. 811-12.
In
addition, the ALJ noted the record does not reflect Plaintiff had
strength or sensation loss during the relevant period.
For
example, in physical examinations in June 2014 and October 2014
Plaintiff had 5/5 muscle strength “throughout the bilateral lower
extremities.”
Tr. 622, 845.
In March 2015 Plaintiff had a
negative bilateral straight-leg raise and “no motor weakness” on
examination.
Tr. 1328.
In April 2015 a nerve conduction study
of Plaintiff’s left leg did not reflect any “electrodiagnostic
evidence of a left lower extremity motor radiculopathy,
plexopathy, or monomeuropathy.”
Tr. 1334.
In September 2016
x-rays of Plaintiff’s lumbar spine showed only mild degenerative
changes “involving the sacroiliac joints.”
Tr. 1146.
The ALJ
limited Plaintiff’s walking, standing, and sitting as well as her
ability to climb, stoop, kneel, crouch, and crawl.
In addition, although Plaintiff testified she often yelled
at her ex-husband and other people and had “a really hard time
controlling [her] emotions” during the relevant period, the ALJ
noted the record reflects Plaintiff shopped for groceries, was
able to drive, attended appointments, and interacted regularly
with her ex-husband and sister.
As noted, the ALJ limited
Plaintiff to “no more than occasional interaction with the
general public, coworkers, and supervisors” and also limited
Plaintiff to understanding and carrying out simple instructions.
12 - OPINION AND ORDER
The Court finds on this record that the ALJ did not err when
she partially rejected Plaintiff’s testimony regarding the
intensity, persistence, and limiting effects of her symptoms
during the relevant period.
II.
The ALJ did not err when she partially rejected the opinion
of Dr. Bright.
Plaintiff asserts the ALJ erred when she partially rejected
Dr. Bright’s February 17, 2017, opinion.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."
(9th Cir. 2002).
Thomas v. Barnhart, 278 F.3d 947, 957
When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
Thomas, 278 F.3d at
See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.
957.
1996).
On February 17, 2017, Dr. Bright completed a Request for
Medical Opinion in which she stated she had been Plaintiff’s
treating rheumatologist for three years.
Dr. Bright stated
Plaintiff suffers from fibromyalgia and her symptoms would likely
increase if Plaintiff was placed in a “stressful work
environment.”
Tr. 1395.
Dr. Bright did not assess or answer
questions on the Request form related to Plaintiff’s specific
13 - OPINION AND ORDER
physical limitations.
For example, Dr. Bright did not assess
Plaintiff’s ability to sit, stand, walk, lift, carry, climb,
balance, stoop, bend, kneel, crouch, reach, handle, finger, or
feel.
Tr. 1396.
Dr. Bright stated Plaintiff did not “experience
side effects from any medications that would interfere with her
ability to sustain basic attention and concentration needed to
perform even simple work tasks.”
Tr. 1397.
Dr. Bright answered
“no” to whether “any of [Plaintiff’s] symptoms [would] interfere
with her ability to sustain the basic attention and concentration
needed to perform even simple work tasks.”
Tr. 1397.
Nevertheless, Dr. Bright stated she “[w]ould expect [Plaintiff]
to miss 16 hours . . . or more a month from even a simple and
routine sedentary job because of her impairments, symptoms,
medications, and their side effects.”
Tr. 1397.
The ALJ rejected that portion of Dr. Bright’s opinion in
which she stated Plaintiff would likely miss 16 hours of work or
more per month.
The ALJ noted Dr. Bright completed a Residual
Functional Capacity Form in January 2017 in which she did not
assess Plaintiff’s specific physical limitations.
noted Plaintiff had daily, moderate pain.
Dr. Bright
Nevertheless,
Dr. Bright concluded in January 2017 that Plaintiff’s
fibromyalgia was “stable” and “not disabling.”
Tr. 517.
In
addition, the ALJ noted Dr. Bright had treated Plaintiff only
five times over three years.
14 - OPINION AND ORDER
See 20 C.F.R. § 404.1527(c)(2)(i)
(“[W]e consider all of the following factors in deciding the
weight we give to any medical opinion:
. . . [l]ength of the
treatment relationship and the frequency of examination.
Generally, the longer a treating source has treated you and the
more times you have been seen by a treating source, the more
weight we will give to the source's medical opinion.”).
Finally,
Dr. Bright’s February 2017 opinion was brief and conclusory.
The
Ninth Circuit has made clear that an “‘ALJ need not accept the
opinion of any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported by
clinical findings.’”
Bray v. Comm’r Soc. Sec. Admin., 554 F.3d
1219, 1228 (9th Cir. 2009)(quoting Thomas v. Barnhart, (9th Cir.
2002)).
Accordingly, on this record the Court concludes the ALJ did
not err when she rejected that portion of Dr. Bright’s February
2017 opinion relating to the number of hours of work she expected
Plaintiff to miss.
IV.
The ALJ erred when she failed to include all of Plaintiff’s
limitations in her hypothetical to the VE.
Plaintiff alleges the ALJ erred when she failed to pose a
hypothetical to the VE that accurately described all of
Plaintiff’s mental limitations as found by the ALJ.
Specifically, the ALJ found Plaintiff has moderate difficulties
in concentration, persistence, and pace.
At the hearing the
hypothetical that the ALJ posed to the VE only limited Plaintiff
15 - OPINION AND ORDER
to understanding and to carrying out simple instructions.
Plaintiff, therefore, asserts the “hypothetical failed to include
any limitations in [Plaintiff’s] ability to concentrate over a
period of time, persist at tasks, or maintain a particular work
pace over the course of a workday or workweek.”
Pl.’s Brief
at 20.
In Brink v. Commissioner Social Security Administration the
Ninth Circuit explained:
A hypothetical question posed to a vocational
expert must “include all of the claimant's
functional limitations, both physical and mental.”
Flores v. Shalala, 49 F.3d 562, 570 (9th Cir.
1995). Here, the administrative law judge (“ALJ”)
accepted medical evidence that Brink has moderate
difficulty maintaining concentration, persistence,
or pace. However, the ALJ's initial hypothetical
question to the vocational expert referenced only
“simple, repetitive work,” without including
limitations on concentration, persistence or pace.
This was error.
The Commissioner's contention that the phrase
“simple, repetitive work” encompasses difficulties
with concentration, persistence, or pace is not
persuasive. Indeed, repetitive, assembly-line
work of the type described by the expert might
well require extensive focus or speed.
* * *
Although the ALJ accepted that [the plaintiff] has
moderate difficulty with concentration,
persistence, or pace, he nevertheless concluded,
contrary to the vocational expert's testimony,
that [the plaintiff] can perform certain light
work. This conclusion was based on an incomplete
hypothetical question, and is not supported by
substantial evidence. The hypothetical question
to the vocational expert should have included not
only the limitation to “simple, repetitive work,”
16 - OPINION AND ORDER
but also [the plaintiff's] moderate limitations in
concentration, persistence, or pace.
343 F. App’x 211, 212 (9th Cir. Aug. 18, 2009).
Defendant contends Brink should not inform the Court’s
decision because it is an unpublished case.
Defendant asserts
the Court should instead apply the analysis in Stubbs-Danielson
v. Astrue, 539 F.3d 1169 (9th Cir. 2008).
In Brink, however, the
Ninth Circuit distinguished Stubbs-Danielson:
In Stubbs–Danielson v. Astrue, 539 F.3d 1169 (9th
Cir. 2008), we held that an “assessment of a
claimant adequately captures restrictions related
to concentration, persistence, or pace where the
assessment is consistent with the restrictions
identified in the medical testimony.” Id. at
1174. The medical testimony in Stubbs–Danielson,
however, did not establish any limitations in
concentration, persistence, or pace. Here, in
contrast, the medical evidence establishes, as the
ALJ accepted, that Brink does have difficulties
with concentration, persistence, or pace.
Stubbs–Danielson, therefore, is inapposite.
343 F. App’x at 212.
In Betancourt v. Astrue, No. EDCV 10-0196
CW, 2010 WL 4916604 (C.D. Cal. Nov. 27, 2010), the ALJ accepted
medical evidence of plaintiff's limitations in maintaining
concentration, persistence, or pace.
The ALJ included in his
hypothetical to the VE the plaintiff's restriction to “simple,
repetitive work,” but the ALJ did not include restrictions based
on the plaintiff’s limitations with concentration, persistence,
or pace.
The court concluded the ALJ erred because his
conclusion was “based on an incomplete hypothetical question and
unsupported by substantial evidence.”
17 - OPINION AND ORDER
2010 WL 4916604, at *3–4.
See also Melton v. Astrue, No. 09–CV–1000–BR, 2010 WL 3853195, at
*8 (D. Or. Sep. 28, 2010), aff'd. sub nom. Melton v. Comm'r Soc.
Sec. Admin., 442 F. App'x 339 (9th Cir. 2011)(The ALJ erred in
her assessment of plaintiff's RFC because the assessment included
the plaintiff's restriction to simple, repetitive tasks, but did
not include the plaintiff's mild-to-moderate limitations in
maintaining concentration, persistence, or pace); Cavanaugh v.
Colvin, No. CV 13–1222–TUC–JAS (DTF), 2014 WL 7339072, at *3 (D.
Ariz. Dec. 23, 2014)(“In Stubbs-Danielson, the ALJ did not make
an explicit finding that the claimant had pace limitations. . . .
In contrast, in Cavanaugh’s case, the ALJ made a finding that she
had a concentration, persistence, or pace deficiency.”); Juarez
v. Colvin, No. CV 13–2506 RNB, 2014 WL 1155408, at *7 (C.D. Cal.
Mar. 20, 2014)(“Here, the ALJ expressly found, consistent with
the opinion of a state agency review physician, that plaintiff
had moderate limitation in maintaining concentration,
persistence, and pace. . . .
Accordingly, under Brink, whose
reasoning the Court finds persuasive, the ALJ’s RFC determination
should have included not only the limitation to unskilled work
but also a moderate limitation in maintaining concentration,
persistence, and pace.”).
Here, as in Brink, Betancourt, Melton, Cavanaugh, and
Juarez, the ALJ found Plaintiff had moderate deficiencies in
concentration, persistence, or pace and expressly included
18 - OPINION AND ORDER
functional limitations based on that finding in Plaintiff’s RFC.
The ALJ, however, only included in her hypothetical to the VE a
limitation to “understanding and carrying out simple
instructions.”
Tr. 256.
On this record, therefore, the Court concludes ALJ erred
when she did not expressly include limitations on Plaintiff’s
concentration, persistence, or pace in her hypothetical to the
VE.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
Id. at 1179.
The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
The court should grant an immediate award
of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
19 - OPINION AND ORDER
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.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
On this record the Court concludes further proceedings are
necessary because the ALJ did not include Plaintiff’s limitations
in her hypothetical to the VE.
The VE’s analysis of Plaintiff’s
ability to perform other jobs that exist in the national economy,
therefore, was incomplete.
Thus, the Court concludes a remand
for further proceedings consistent with this Opinion and Order is
required to permit the ALJ to pose a complete hypothetical to the
VE.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
28 U.S.C. § 405(g) for further proceedings consistent with this
20 - OPINION AND ORDER
Opinion and Order.
IT IS SO ORDERED.
DATED this 11th day of June, 2019.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
21 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?