Vasquez v. Commissioner Social Security Administration
Filing
19
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g), for the immediate calculation and payment of benefits to Plaintiff. Signed on 11/16/2015 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CLARISSE VASQUEZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
GEORGE J. WALL
1336 E. Burnside Street, Suite 130
Portland, OR 97214
(503) 236-0028
Attorney for Plaintiff
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
3:14-CV-01991-BR
OPINION AND ORDER
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
(206) 615-2531
Attorneys for Defendant
BROWN, Judge.
Plaintiff Clarisse Vasquez seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for
Supplemental Security Income (SSI) under Title XVI and for
Disability Insurance Benefits (DIB) under Title II of the Social
Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court REVERSES the
decision of the Commissioner and REMANDS this matter for the
calculation and payment of benefits pursuant to Sentence Four, 42
U.S.C. § 405(g).
ADMINISTRATIVE HISTORY
Plaintiff protectively filed her applications for DIB and
SSI on November 4, 2010, and January 26, 2011, and alleged a
disability onset date of November 2, 2010.
1
Tr. 194-209.1
The
Citations to the official transcript of record filed by
the Commissioner on April 15, 2015, are referred to as "Tr."
2 - OPINION AND ORDER
applications were denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on February 5,
2013.
Tr. 51-77.
attorney.
At the hearing Plaintiff was represented by an
Plaintiff and a vocational expert (VE) testified.
The ALJ issued a decision on March 15, 2013, in which he
found Plaintiff not disabled.
Tr. 34-43.
That decision became
the final decision of the Commissioner on October 14, 2014, when
the Appeals Council denied Plaintiff's request for review.
Tr. 1-5.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On December 12, 2014, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision that
Plaintiff was not disabled from November 2, 2010, to November 30,
2013.
On April 16, 2015, Plaintiff was found disabled from
January 5, 2015, to the present on a subsequent application.
Accordingly, in this action Plaintiff challenges the
Commissioner’s finding that she was not disabled for the closed
period of November 2, 2010, through November 30, 2013.
BACKGROUND
Plaintiff was born in February 1960 and was 50 years old on
her alleged onset date.
She completed two years of college and
has past relevant work as a care-giver and as an assembler.
Tr. 42.
Plaintiff alleges disability due to “bipolar, manic
3 - OPINION AND ORDER
depressive, arthritis, shoulder pain, diabetes, neuropathy in
both feet, infections on legs and toes.”
Tr. 224.
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.”
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]
4 - OPINION AND ORDER
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 EVALUATION
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(a0(4)(I), 416.920(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
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impairment or combination of impairments.
20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
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), 416.920(a)(4)(iii).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
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 his limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
at *1.
20 C.F.R.
SSR 96-8p,
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
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Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).
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.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
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),
416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her November 2, 2010, onset
date.
Tr. 36.
At Step Two the ALJ found Plaintiff has severe impairments
of diabetes, neuropathy, and bipolar disorder.
Id.
At Step Three the ALJ determined Plaintiff’s impairments did
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not equal in severity a listed impairment and found Plaintiff
retained the RFC to perform light work with simple repetitive
tasks in a nonpublic work environment with minimal interaction
with coworkers and supervisors.
Tr. 38.
At Step Four the ALJ found Plaintiff could not return to her
past relevant work as a care giver or assembler.
Tr. 42.
At Step Five the ALJ found Plaintiff was capable of
performing other work, including small-parts assembler and
garment-folder.
Tr. 43.
DISCUSSION
Plaintiff contends the ALJ erred by (1) finding Plaintiff’s
testimony was less than fully credible; (2) failing to develop
the record regarding her hands; and (3) failing to consider her
obesity and its effect on her ability to stand or walk.
In
addition, Plaintiff contends the Appeals Council erred in finding
that substantial evidence supports the ALJ’s decision.
I.
The ALJ erred when he found Plaintiff's testimony less than
fully credible.
The ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and resolving
ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995).
See also Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir.
2008).
The ALJ's findings, however, must be supported by
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specific, cogent reasons.
(9th Cir. 1998).
Reddick v. Chater, 157 F.3d 715, 722
See also Holohan v. Massanari, 246 F.3d 1195,
1202 (9th Cir. 2001).
Unless there is affirmative evidence that
shows the claimant is malingering, the Commissioner's reason for
rejecting the claimant's testimony must be "clear and
convincing."
Id.
The ALJ must identify the testimony that is
not credible and the evidence that undermines the claimant's
complaints.
Id.
The evidence upon which the ALJ relies must be
substantial. Id. at 724.
See also Holohan, 246 F.3d at 1208.
General findings (e.g., "record in general" indicates
improvement) are an insufficient basis to support an adverse
credibility determination.
Reddick, 157 F.3d at 722.
See also
Holohan, 246 F.3d at 1208.
The ALJ must make a credibility
determination with findings sufficiently specific to permit the
court to conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.
Thomas v. Barnhart, 278 F.3d 947, 958 (9th
Cir. 2002).
When deciding whether to accept a claimant's subjective
symptom testimony, "an ALJ must perform two stages of analysis:
the Cotton analysis and an analysis of the credibility of the
claimant's testimony regarding the severity of her symptoms."
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
Under the Cotton test, a claimant who alleges
disability based on subjective symptoms "must
produce objective medical evidence of an underlying impairment which could reasonably be
9 - OPINION AND ORDER
expected to produce the pain or other symptoms
alleged." Bunnell, 947 F.2d at 344 (quoting
42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799
F.2d at 1407-08. The Cotton test imposes only
two requirements on the claimant: (l) she must
produce objective medical evidence of an
impairment or impairments; and (2) she must
show that the impairment or combination of
impairments could reasonably be expected to
(not that it did in fact) produce some degree
of symptom.
Smolen, 80 F.3d at 1282.
See also Carmickle v. Comm’r Soc. Sec.
Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).
A.
The Medical Evidence
Plaintiff testified she was able to stand for three-to-five
minutes and that she walked best with a walker.
Tr. 63.
She
stated she experienced pain from bilateral neuropathy and chronic
sores on her feet.
Id.
from the neuropathy.
Plaintiff testified she “trip[s] a lot”
Tr. 60.
The ALJ found Plaintiff’s statements as to the severity of
her impairments less than fully credible and found Plaintiff
could stand and walk for up to six hours in an eight-hour
workday.
Tr. 41.
The ALJ noted "physical examination" findings
that did not substantiate Plaintiff’s alleged limitations.
Tr. 39-41.
“Although lack of medical evidence cannot form the
sole basis for discounting pain testimony, it is a factor that
the ALJ can consider in his credibility analysis.”
Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
The ALJ noted the March 2011 opinion of Phong T. Dao, D.O.,
10 - OPINION AND ORDER
examining physician.
Tr. 330-36.
Dr. Dao found Plaintiff had
“[g]ood tone bilaterally, with good active motion” and her
strength was normal at “5/5 in all extremities.”
Tr. 334.
Dr. Dao also noted Plaintiff had decreased sensation to light
touch on her feet and toes, but her gait was “within normal
limits” and she “ambulated without any limping and without any
assistive device.”
Id.
Dr. Dao found Plaintiff could stand or
walk for six hours in an eight-hour workday.
Plaintiff, however, points to the objective medical evidence
that she was diagnosed as obese and the October 2011 examination
by John Edward Broom, M.D., who found “bilateral foot neuropathy
up to mid shin, wobbly gait.”
Tr. 633.
Plaintiff also cites the
March 28, 2011, examination in which Dr. Dao found (based on a xray) degenerative right-knee joint disease and moderate
osteoarthritis in the right knee.
Tr. 335.
Plaintiff also notes
repeated evidence of chronic open sores on her legs and feet.
See examining provider Lisa Davenport, P.A.-C.(foot ulcers,
cellulitis of shins), Tr. 313; P.A. Davenport (cellulitis),
Tr. 322; examining physician Saifullah Nizamani, M.D. (large
wounds on both legs), Tr. 420; examining provider Matya Cooksey,
F.N.P. (leg wounds), Tr. 532; examining physician Jonathan Baker,
M.D. (foot ulcers, infectious enteritis), Tr. 538; examining
provider Renaldo Barrios, N.P. (open sores on both feet, avoid
walking long distances), Tr. 543; Nurse Barrios (markedly
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decreased sensation to plantar surfaces of toes), Tr. 540.
On this record the Court concludes Dr. Dao’s opinion that
Plaintiff can stand and walk for six hours in an eight-hour day
is not a legally sufficient reason for finding Plaintiff’s
testimony less than fully credible in light of substantial
medical evidence in the record that contradicts Dr. Dao’s
opinion.
In addition, Plaintiff’s testimony that she trips a lot
is verified by the fact that she fell the day after the hearing
and broke her ankle.
B.
Tr. 655.
Failure to Take Pain Medication
The ALJ found Plaintiff’s “use of medications” does not
“suggest” her symptom testimony is true because she does not take
narcotic pain-killers.
Plaintiff contends this reasoning fails
because she is limited to sedentary work and her physical pain is
caused by standing and walking.
Although Plaintiff does not take
narcotic pain-killers, the record indicates Plaintiff was
prescribed the non-opioid pain medication Neurontin.
Tr. 485,
498, 507.
On this record the Court concludes the fact that Plaintiff
did not take stronger pain medication is not a legally sufficient
reason for the ALJ to find Plaintiff’s testimony was less than
fully credible.
C. Reason to Stop Working
The ALJ noted Plaintiff testified that she lost her job
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because she was unable to concentrate, but she reported to
examining psychiatrist Gregory Nicholson, M.D., that she was
terminated from her last job for playing on the computer rather
than because of her medical impairments.
Tr. 40, 343.
Although an ALJ may consider whether a claimant’s separation
from work is unrelated to an alleged disabling condition
(Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008)), the
Court concludes on this record that the reason for losing her
last job is not a legally sufficient reason for finding
Plaintiff’s testimony was not credible as a whole.
D.
Activities of Daily Living
The ALJ found the evidence of Plaintiff’s daily activities
suggested a greater level of functioning than her alleged
limitations.
Tr. 40, 232-35.
“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.”
Molina, 674 F.3d at 1112-13 (citations and internal
punctuation omitted).
Evidence of a claimant’s activities that
conflict with a claimant’s alleged symptoms supports an adverse
credibility determination, regardless of whether the activities
demonstrate that the claimant can work.
1113.
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Molina, 674 F.3d at
Plaintiff reported that she walked her dog, fed and watered
her cat, prepared meals on a daily basis, cleaned, washed
laundry, drove a car, shopped for groceries and clothes, and went
out daily.
The only identified activity clearly inconsistent
with Plaintiff’s testimony that she can only stand for three-tofive minutes is shopping.
In summary, on this record the ALJ’s reasons for finding
Plaintiff’s testimony not credible are not clear and convincing,
and the ALJ’s determination that Plaintiff is less than fully
credible is not supported by substantial evidence in the record.
II.
The ALJ failed to develop the record.
Plaintiff broke her wrist in June 2012.
Tr. 536.
The
surgical repair failed, and she had a second surgery on
August 21, 2012.
Tr. 579, 608-10.
On September 16, 2012,
Plaintiff's physicians described her as “doing well” and
recommended conservative treatment with range-of-motion exercises
“as tolerated.”
Tr. 610.
Plaintiff did not seek further care
for her left wrist.
Plaintiff testified at the hearing that she would have
“trouble assembling parts” because of her wrist surgery and had
been told she would have “full arthritis” within a year or so.
Tr. 75-76.
The Commissioner bears the burden of developing the record.
DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
14 - OPINION AND ORDER
See also
Mayes, 276 F.3d at 459.
The duty to develop the record is
triggered when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.
Id.
The ALJ is required to seek additional evidence if the evidence
already in the record favors the claimant.
Lewis v. Apfel, 236
F.3d 503, 514-15 (9th Cir. 2001).
The ALJ found Plaintiff retained the capacity to work as a
small-parts assembler (DOT No. 929.587-010) and garment-folder
(DOT No. 789.687-066).
The Dictionary of Occupational Titles
defines No. 929.587-010 as Nut-and-Bolt Assembler:
Couples and packages nuts and bolts. Screws
nut on bolt by hand and holds nut in chuck
of nut-turning machine that spins and tightens
nut on bolt. Weighs or counts specified
amounts of nuts and bolts, and records number
of units on production form. Pushes box or
carton along bench or onto conveyor. May tie
long bolts into bundles, using wire. May feed
nuts and bolts into hopper of machine that
automatically couples and packages nuts and
bolts.
Garment Folder is defined as:
Folds garments for bagging or boxing, following
guide marks on table or using folding board
(cardboard or metal form). Secures folds with
metal clips. May insert tissue paper between
folds. May make final inspection of garment.
May pack garments in bags and boxes {Packager,
Hand (any industry)]. May be designated
according to garment folded as Shirt Folder
(Garment; knitting).
Plaintiff contends the jobs identified by the ALJ require
repetitive use of the hands, and the failed surgical repair of
15 - OPINION AND ORDER
her hand is objective medical evidence that she has limitations
in the use of her hand.
Plaintiff also testified she would have
trouble folding garments due to shoulder pain arising from
shoulder surgery seven years ago.
Tr. 75.
The only evidence in
the record regarding Plaintiff's wrist, hand, or shoulder
limitations is her testimony, and that evidence favors Plaintiff.
The ALJ noted Plaintiff’s history of wrist surgeries, but he
concluded the “record does not indicate this condition would
preclude the claimant’s ability to work and the undersigned
concludes it is nonsevere.”
Tr. 40-41.
On this record the ALJ erred by failing to develop the
record as to any limitations Plaintiff may have with her hand,
wrist, or shoulder.
III. Consideration of Plaintiff’s Obesity in Evaluating her RFC
Plaintiff contends the ALJ erred by failing to consider her
obesity as a severe impairment at Step Two and failing to account
for it in his evaluation of her RFC.
“[T]he step-two inquiry is a de minimis screening device to
dispose of groundless claims.”
Smolen, 80 F.3d at 1290.
Because
the ALJ proceeded beyond Step Two, the ALJ’s failure to mention
obesity at Step Two is harmless error.
See Molina, 674 F.3d at
1115 (citing Carmickle, 533 F.3d at 1162).
SSR 02-01p, “Evaluation of Obesity,” was enacted to ensure
that obesity is fairly evaluated even though it is no longer a
16 - OPINION AND ORDER
listed impairment.
SSR 02-01p provides the Commissioner must
consider the effects of obesity at every step of the evaluation.
Plaintiff is 5'6" tall and weighed between 195 and 210
pounds during the relevant period.
She was diagnosed as obese
and told that weight loss would help with her knee pain.
Tr. 530, 535, 547.
Plaintiff, nevertheless, contends her obesity
contributed to her limitations of standing and walking and should
have been considered in the evaluation of her RFC.
The ALJ did not mention Plaintiff’s obesity, and, therefore,
the record does not reflect the ALJ considered Plaintiff’s
obesity as a factor when he evaluated Plaintiff’s RFC.
Tr. 34-
43.
The Commissioner, nevertheless, argues the ALJ reasonably
accommodated Plaintiff’s conditions, including obesity, by
limiting her to light level work.
As noted, however, there is
not any evidence in the record that the ALJ considered
Plaintiff’s obesity when he evaluated Plaintiff’s RFC.
On this record, therefore, the Court concludes the ALJ erred
when he did not indicate in the record that he considered
Plaintiff’s obesity when he evaluated her RFC.
IV.
The Appeals Council did not err when it deemed Plaintiff's
new evidence to be irrelevant to the ALJ's March 15, 2013,
decision.
Plaintiff submitted to the Appeals Council new evidence
dated September 24, 2013, that she underwent amputation of her
17 - OPINION AND ORDER
right leg below the knee as a result of her broken ankle.
7.
Tr. 2,
The Appeals Council found this new evidence occurred after
the ALJ’s March 15, 2013 decision, and, therefore, did not affect
the ALJ's decision regarding whether Plaintiff was disabled on or
before March 15, 2013.
Tr. 2.
Plaintiff, however, argues this evidence demonstrates why
she was limited to sedentary work throughout the relevant period.
According to Plaintiff, her lower legs and feet were numb so she
was prone to fall, and her injuries were prone to infection
because she had diabetes with neuropathy.
Plaintiff contends
such a person cannot stand or walk in the workplace for six hours
a day, five days a week.
Defendant, in turn, argues the new evidence occurred after
the ALJ’s March 15, 2013, decision and, therefore, did not affect
the ALJ's decision as to whether Plaintiff was disabled on or
before March 15, 2013.
On this record the Court concludes the Appeals Council did
not err when it found the evidence of Plaintiff’s subsequent
amputation of her leg was not relevant to the period prior to
March 15, 2013.
REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
18 - OPINION AND ORDER
utility of further proceedings.
1179 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
When "the record has been fully developed
and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.
Harman, 211 F.3d 1178.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
Id.
The Court should grant an
immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
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.
The Court has determined the ALJ erred when he found
Plaintiff’s testimony less than fully credible; when he failed to
develop the record regarding any functional limitations of
Plaintiff’s hand, wrist, and shoulder; and when he failed to
19 - OPINION AND ORDER
consider Plaintiff’s obesity.
If credited, Plaintiff’s testimony
establishes Plaintiff was limited to sedentary work and because
she was over age 50 without transferable skills, she, therefore,
was disabled according to the Medical-Vocational Guidelines Rule
201.00.
Rule 201.00, 20 C.F.R., Pt. 404, Subpt. P, App.2,
Medical-Vocational Guidelines.
Thus, the Court concludes
Plaintiff was disabled from November 2, 2010, through
November 30,2013, based on this medical record and that no useful
purpose would be served by a remand of this matter for further
proceedings.
See Harman, 211 F.3d at 117.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner pursuant
to Sentence Four, 42 U.S.C. § 405(g), for the immediate
calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED.
DATED this 16th day of November, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
20 - OPINION AND ORDER
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