Fertig v. Commissioner Social Security Administration
Filing
64
Opinion and Order. The Court GRANTS Defendants Motion 61 for Remand, REVERSES the final decision of the Commissioner, and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order with instructions that the matter be assigned to a different ALJ. Signed on 08/31/2015 by Judge Anna J. Brown. See attached 21 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
NANCY ANN FERTIG,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
NANCY ANN FERTIG
15898 Twin Drive
La Pine, OR 97739
Plaintiff, Pro Se
BILLY J. WILLIAMS
Acting United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1011
1 - OPINION AND ORDER
3:13-cv-02093-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
(206) 615-2733
Attorneys for Defendant
BROWN, Judge.
Plaintiff Nancy Ann Fertig 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
Act.
This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).
In response to Plaintiff’s Opening Brief, Defendant filed a
Motion (#61) for Remand in which Defendant acknowledges the ALJ
made errors that necessitate a remand to the Commissioner for
further administrative proceedings.
Following a thorough review
of the record, the Court GRANTS Defendant’s Motion (#61) for
Remand, REVERSES the final decision of the Commissioner and
REMANDS this matter for further administrative proceedings
consistent with this Opinion and Order.
ADMINISTRATIVE HISTORY
Plaintiff filed her applications for DIB and Supplemental
2 - OPINION AND ORDER
Security Income (SSI) on February 2, 2010.
Tr. 14.1
Plaintiff’s
application for SSI was denied, however, because her family
income is too high to qualify for SSI.
Plaintiff does not appeal
that determination.
Plaintiff’s application for DIB was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on January 31, 2012.
Tr. 31.
was represented by an attorney.
At the hearing Plaintiff
Plaintiff and a vocational
expert (VE) testified at the hearing.
Tr. 31.
The ALJ issued a decision on February 15, 2012, in which he
found Plaintiff is not entitled to benefits.
Tr. 14-26.
That
decision became the final decision of the Commissioner on
September 20, 2013, when the Appeals Council denied Plaintiff’s
request for review.
Tr. 1-3.
See Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
BACKGROUND
Plaintiff was born on October 2, 1950; was 61 years old on
the date of the hearing; and has a high-school diploma and three
years of college education.
Tr. 140, 179, 209.
Plaintiff has
prior relevant work experience as a caregiver, bookkeeper, and
“bookkeeper and tax preparer.”
1
Tr. 25, 56.
Citations to the official transcript of record filed by
the Commissioner on September 19, 2014, are referred to as “Tr.”
3 - OPINION AND ORDER
Plaintiff alleges disability since August 15, 2008, due to
chronic depression, arthritis, heart disease, hypertension,
double bypass surgery, carpal-tunnel syndrome with “trigger”
fingers, varicose veins, bilateral knee replacements, bunions,
cataracts, and gastric-bypass surgery.
Tr. 208.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 17-25.
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
4 - OPINION AND ORDER
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42
U.S.C. § 405(g).
See also Brewes v. Comm’r, 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.”
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).
5 - OPINION AND ORDER
DISABILITY ANALYSIS
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.
Keyser v. Comm’r of
Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
See also
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§ 404.1520.
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, 648
F.3d at 724.
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.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.
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).
6 - OPINION AND ORDER
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
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)).
The assessment of a claimant's
RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.
An improper evaluation
of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"
SSR 96-8p, at *4.
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.
7 - OPINION AND ORDER
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 has not engaged in
substantial gainful activity since August 15, 2008, her alleged
onset date.
Tr. 16.
At Step Two the ALJ found Plaintiff has the severe
impairments of “status post coronary artery bypass graft in
2007”; “status post gastric bypass on September 27, 2007”;
“status post total knee replacement on the left on August 28,
2006”; “total knee replacement on the right on May 11, 2009”;
iron-deficiency anemia; varicose veins; a personality disorder
8 - OPINION AND ORDER
(pathological gambling); and depression.
Tr. 17-18.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.
Tr. 18.
In her assessment of Plaintiff’s RFC, the
ALJ found Plaintiff has the functional capacity to lift and to
carry 20 pounds occasionally and 10 pounds frequently, to stand
and/or to walk for two out of eight hours, and to sit for six
hours in an eight-hour workday.
Tr. 18-25
At Step Four the ALJ found Plaintiff is able to perform her
past relevant work as a bookkeeper.
Tr. 25.
Accordingly, the ALJ found Plaintiff is not disabled and,
therefore, is not entitled to benefits.
Tr. 25-26.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) did not list
Plaintiff’s gout, arthritis, “trigger fingers,” and carpal-tunnel
syndrome in her hands as severe impairments at Step Two;
(2) rejected the opinion of examining psychologist Harold W.
Mesberg, Ph.D.; (3) failed to include limitations related to
Plaintiff’s mental-health conditions in his assessment of
Plaintiff’s RFC; and (4) found at Step Four that Plaintiff can
return to her past relevant work as a bookkeeper.
9 - OPINION AND ORDER
I.
Step Two
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.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 416.920(a)(4)(ii); Keyser v. Comm’r of Soc. Sec. Admin.,
648 F.3d 721, 724 (9th Cir. 2011).
A severe impairment
“significantly limits” a claimant’s “physical or mental ability
to do basic work activities.”
20 C.F.R. §§ 416.921(a), (b).
Such abilities and aptitudes include walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, handling, seeing,
hearing, and speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervisors, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
Id.
The Step Two threshold is low:
[A]n impairment can be considered as not severe only if
it is a slight abnormality which has such a minimal
effect on the individual that it would not be expected
to interfere with the individual’s ability to work
. . . . [T]he severity regulation is to do no more
than allow the Secretary to deny benefits summarily to
those applicants with impairments of a minimal nature
which could never prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
To be included at Step Two the record evidence concerning an
impairment must include “signs - the results of ‘medically
10 - OPINION AND ORDER
acceptable clinical diagnostic techniques,’ such as tests - as
well as symptoms, i.e., [the claimant’s] representations
regarding [her] impairment.”
Ukolov v. Barnhart, 420 F.3d 1002,
1005 (9th Cir. 2005).
The Ninth Circuit has held when the ALJ has resolved Step
Two in a claimant’s favor, any error in designating specific
impairments as severe does not prejudice a claimant at Step Two
if the ALJ properly considers the omitted condition later in the
sequential analysis.
Burch v. Barnhart, 400 F.3d 676, 682-84
(9th Cir. 2005)(any error in omitting an impairment from the
severe impairments identified at Step Two was harmless when Step
Two was resolved in claimant’s favor).
Plaintiff contends the ALJ erred when he failed to include
any conditions related to Plaintiff’s hand impairments at Step
Two.
Plaintiff specifically contends the ALJ failed to include
gout, carpal-tunnel syndrome, “trigger fingers,” and hand
arthritis as severe impairments at Step Two, and, together with
her Motion (#55) for Relief (which this Court has construed as
Plaintiff’s opening memorandum), Plaintiff submits new evidence
regarding treatment of various hand conditions.
The ALJ did not find Plaintiff’s hand conditions were severe
at Step Two on the grounds that Plaintiff’s complaints regarding
her hand problems were “sporadic and infrequent” and there was
not any “confirmed diagnosis.”
11 - OPINION AND ORDER
Tr. 18.
At the hearing Plaintiff
reported she has “problems with [her] hands,” including
arthritis, gout in her left thumb, trigger fingers, and carpaltunnel syndrome.
Tr. 43, 45.
On March 13, 2009, Plaintiff reported to her primary-care
provider Mark Backus, M.D., that the “ring fingers on both hands
will dislocate and cramp up” if Plaintiff “grips something hard.”
Tr. 539.
On examination Dr. Backus noted “[t]rigger fingers on
both ring fingers proximal interphalangeal joint” and noted his
diagnosis of trigger fingers was “pretty certain.”
Tr. 540-41.
At that time, however, Plaintiff declined Dr. Backus's referral
to a specialist for her trigger fingers.
Tr. 541.
On
December 15, 2009, Plaintiff requested a referral for surgery on
her trigger fingers.
Tr. 551.
On March 28, 2011, Plaintiff
again complained of hand and wrist limitations that primarily
focused on Plaintiff’s left wrist.
Tr. 645.
On examination
Dr. Backus noted Plaintiff’s left wrist was “obviously swollen”
and “warm to the touch,” which Dr. Backus concluded was “most
likely gout.”
Although the ALJ was correct to note Plaintiff’s complaints
regarding hand limitations were relatively sporadic throughout
the record, Plaintiff’s medical records and testimony establish
sufficient signs and symptoms of hand conditions to warrant
inclusion of hand limitations as severe impairments at Step Two.
See Ukolov, 420 F.3d at 1005.
12 - OPINION AND ORDER
Accordingly, on this record the
Court concludes the ALJ erred by failing to account for
Plaintiff’s hand limitations at Step Two.
This error is not
harmless because the ALJ did not specify any limitations in the
RFC related to Plaintiff’s hand limitations.
As to the additional evidence submitted to this Court by
Plaintiff, this Court may not consider any such evidence, but may
remand to the Commissioner with instructions to consider new
evidence “upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g).
“Such good cause exists if ‘new information
surfaces after the Secretary's final decision and the claimant
could not have obtained that evidence at the time of the
administrative proceeding.’”
Smith v. Comm’r Soc. Sec. Admin.,
No. 13-35441, 2015 WL 2251047, at *1 (9th Cir. May 14,
2015)(quoting Kay v. Heckler, 754 F.2d 1545, 1551 (9th Cir.
1985)).
Most of the new evidence that Plaintiff submits are medical
records from the time after the Commissioner issued her final
decision.
Many of those medical records detail treatment of
Plaintiff’s hand and wrist conditions, including surgery for
carpal-tunnel syndrome.
This medical evidence is material, and
good cause exists for Plaintiff’s failure to incorporate that
evidence into the record in light of the fact that most of the
13 - OPINION AND ORDER
evidence arose after the Commissioner issued her final decision,
but before Plaintiff’s last date insured on March 31, 2014.
Accordingly, on this record the Court also concludes the
Commissioner shall consider the new medical evidence submitted to
this Court with Plaintiff’s Motion (#55) for Relief.
II.
Dr. Mesberg’s Opinion
An ALJ may reject an examining or 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.
Taylor v. Comm'r of
Soc. Sec., 659 F.3d 1228, 1232 (9th Cir. 2011).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
rejecting it.
Turner v. Comm'r of Soc. Sec., 613 F.3d 821, 830-
31 (9th Cir. 2010)(quoting Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1995)).
The opinion of a treating physician is "given
greater weight than the opinions of other physicians."
Kelly v.
Astrue, 471 F. App'x 674, 676 (9th Cir. 2012)(quoting Smolen v.
Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
See also Garrison
"The opinion of a
nonexamining physician cannot by itself constitute substantial
14 - OPINION AND ORDER
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
at 1233 (quoting Lester, 81 F.3d at 831).
Taylor, 659 F.3d
When a nonexamining
physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the nonexamining physician's
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.
See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008).
"An ALJ may reject a . . . physician's
opinion if it is based ‘to a large extent’ on a claimant's selfreports that have been properly discounted as incredible."
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
(internal quotation marks omitted)(quoting Morgan v. Comm'r of
Soc. Sec., 169 F.3d 595, 602 (9th Cir. 1995)).
See also Andrews
v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)("[A]n opinion of
disability premised to a large extent upon the claimant's own
accounts of his symptoms and limitations may be disregarded, once
those complaints have themselves been properly discounted.").
Dr. Mesberg conducted a “Social Security Disability
Evaluation” of Plaintiff at the referral of Plaintiff’s attorney.
Dr. Mesberg found Plaintiff to be a “very intelligent and
perspicacious individual” and that Plaintiff suffered “deep
neurotic conflicts largely resulting from severe emotional abuse
that she suffered as a child.”
15 - OPINION AND ORDER
Tr. 599.
After extensively
discussing Plaintiff’s self-reported history and conducting the
Personality Assessment Inventory examination that “showed high
scores in suicidal feelings, anxiety and depression” as well as
“in anti-social behavior and traumatic stress,” Dr. Mesberg
concluded Plaintiff “is not an individual with a psychosis or any
other obviously disabling mental illness,” but Plaintiff had
“sever[e] neurotic conflicts which are of a debilitating
intensity.”
Tr. 601.
After opining that Plaintiff’s “emotional
conflicts have closely interacted with her physical problems in a
downward spiral and negative synergy,” Dr. Mesberg concluded
“[w]hile her emotional conflicts, however, intense, might not be
completely debilitating, the interaction with her extensive
medical problems does constitute a very substantial impairment.”
Tr. 602.
The ALJ gave Dr. Mesberg’s opinion “no weight” because
(1) Plaintiff’s mental-health treatment notes reflect stability
with medication, refusal of additional medication and counseling,
and only sporadic attendance at counseling sessions; (2) Dr.
Mesberg relies “almost entirely” on Plaintiff’s self-reported
symptoms; and (3) Dr. Mesberg did not assess specific mental
limitations.
Dr. Mesberg’s opinion was contradicted by the
nonexamining opinion of Bill Hennings, Ph.D., in which Dr.
Hennings determined Plaintiff did not have any severe mental
impairments.
Tr. 67-68.
16 - OPINION AND ORDER
Accordingly, the ALJ was required to
identify specific and legitimate reasons to reject Dr. Mesberg’s
opinion.
See Ryan, 528 F.3d at 1198.
The ALJ’s reasons amount to clear and convincing reasons to
reject Dr. Mesberg’s opinion.
The ALJ is correct that the vast
majority of Dr. Mesberg’s opinion is based on Plaintiff’s selfreport of symptoms and social and medical history.
This is a
compelling reason for the ALJ to reject Dr. Mesberg’s opinion
because the ALJ properly discredited Plaintiff’s testimony.2
Moreover, the ALJ was correct that Dr. Mesberg failed to assess
any specific mental limitations that could be translated into
limitations in the ALJ’s assessment of Plaintiff’s RFC.
Accordingly, on this record the Court concludes the ALJ did
not err when he rejected Dr. Mesberg’s opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
III. Incorporation of Plaintiff’s Mental Limitations into the RFC
Plaintiff next contends the ALJ erred in his assessment of
Plaintiff’s RFC because the ALJ’s conclusion that Plaintiff did
not have any work-related mental limitations is not supported by
the record.
2
Plaintiff does not explicitly assign error to the ALJ’s
rejection of her testimony. Because Plaintiff is proceeding pro
se, however, the Court has, nonetheless, examined the ALJ’s
stated reasons for rejecting Plaintiff’s testimony (see Tr. 1923) and concludes they constitute clear and convincing reasons
supported by substantial evidence for discrediting Plaintiff’s
testimony.
17 - OPINION AND ORDER
As noted, substantial evidence is “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.”
Molina, 674 F.3d. at 1110-11 (quoting Valentine,
574 F.3d at 690).
In his assessment of Plaintiff’s RFC the ALJ concluded
Plaintiff has “no work-related mental limitations.”
Throughout
the course of his opinion the ALJ noted Plaintiff missed
counseling appointments, at times declined to pursue
psychotherapy and additional mental-health medication, and showed
improvement with medication.
Although the ALJ correctly cited instances in which
Plaintiff demonstrated reluctance to pursue additional mentalhealth treatment and saw improvement with medication, the record,
viewed as a whole, does not provide “relevant evidence that a
reasonable mind might accept as adequate to support” the
conclusion that Plaintiff has no work-related mental limitations.
See Molina, 674 F.3d. at 1110-11 .
There is significant evidence
in the record (including records of a week-long stay in a mentalhealth treatment facility after a suicide attempt) that
demonstrates Plaintiff has been engaged in a long-term struggle
with depression and gambling addiction.
The evidence that the
ALJ relied on may support a finding that Plaintiff’s mental
limitations are not as significant as Plaintiff alleges, but that
evidence does not support the conclusion that Plaintiff does not
18 - OPINION AND ORDER
have any work-related mental limitations.
Accordingly, the Court concludes the ALJ’s assessment of
Plaintiff’s RFC is not supported by substantial evidence in the
record.
IV.
Step Four
Plaintiff next contends the ALJ erred in his conclusion that
Plaintiff can perform her past relevant work as a bookkeeper
because such employment is not possible in light of Plaintiff’s
gambling addiction.
The Court, however, need not resolve this
issue because the ALJ’s Step Four finding was based on the ALJ’s
erroneous assessment of Plaintiff’s RFC.
REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.
Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).
issue turns on the utility of further proceedings.
The
A remand for
an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the
record has been fully developed and the evidence is insufficient
to support the Commissioner’s decision.
Strauss v. Comm’r, 635
F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)).
In light of the ALJ’s errors at Step Two and in his
19 - OPINION AND ORDER
assessment of Plaintiff’s RFC as well as the materiality of the
new evidence submitted by Plaintiff to this Court, the Court
concludes further administrative proceedings are necessary.
Because the ALJ made multiple significant errors, the Court
concludes it is not possible for the Commissioner to reach a
disability determination without performing a comprehensive
reevaluation of the record.
On remand, therefore, the
Commissioner must assign the matter to a different ALJ to make a
new disability determination based on the entirety of the record,
including the newly-submitted medical evidence.
See Reed v.
Massanari, 270 F.3d 838, 845 (9th Cir. 2001)(instructing the
Commissioner to assign a remanded matter to a different ALJ).
See also Jeffries v. Astrue, 254 F. App’x 601, 603 (9th Cir.
2007)(same).
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#61)
for Remand, REVERSES the final decision of the Commissioner, and
REMANDS this matter pursuant to sentence four of 42 U.S.C.
§ 405(g) for further administrative proceedings consistent with
20 - OPINION AND ORDER
this Opinion and Order with instructions that the matter be
assigned to a different ALJ.
IT IS SO ORDERED.
DATED this 31st day of August, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
21 - OPINION AND ORDER
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