Inskeep v. Commissioner Social Security Administration

Filing 14

Opinion and Order. The Court REVERSES the 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. Signed on 06/27/2016 by Judge Anna J. Brown. See attached 20 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARYALICE INSKEEP,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

BRUCE W. BREWER
P.O. Box 421
West Linn, OR 97068
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

3:15-cv-00759-BR
OPINION AND ORDER

BROWN, Judge.
Plaintiff Maryalice Inskeep 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).

Following a thorough

review of the record, the Court REVERSES the 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.

ADMINISTRATIVE HISTORY
Plaintiff filed her application for DIB on September 22,
Tr. 112.1

2011.

reconsideration.

Her application was denied initially and on
An Administrative Law Judge (ALJ) held a

hearing on August 5, 2013, at which Plaintiff was represented by
an attorney.

Tr. 30.

the hearing.

A vocational expert (VE) also testified at

Tr. 30.

The ALJ issued a decision on October 11, 2013, in which he
found Plaintiff is not entitled to benefits.

1

Tr. 10-25.

That

Citations to the official transcript of record filed by
the Commissioner on September 15, 2015, are referred to as “Tr.”
2 - OPINION AND ORDER

decision became the final decision of the Commissioner on
February 27, 2015, 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 30, 1948; was 64 years old on
the date of the hearing; and has a bachelor’s degree.
112.

Tr. 33,

Plaintiff has prior relevant work experience as a

registered nurse.

Tr. 23.

Plaintiff alleges disability since September 14, 2010, due
to depression, anxiety, laminectomy and laminotomy, bilateral hip
replacements, bilateral neuropathy in her feet, high cholesterol,
hypertension, bilateral hand and feet psoriasis, osteoporosis,
and a “back inj[ury].”
was September 31, 2014.

Tr. 132.

Plaintiff’s date last insured

Tr. 128.

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. 13-23.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
3 - OPINION AND ORDER

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012).

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.

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)).
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

4 - OPINION AND ORDER

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
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.
5 - OPINION AND ORDER

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).

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

6 - OPINION AND ORDER

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.

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).

7 - OPINION AND ORDER

ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since September 14, 2010, her
alleged onset date.

Tr. 12.

At Step Two the ALJ found Plaintiff has the following severe
impairments:

osteoarthritis and allied disorders, spine

disorders, and peripheral neuropathy.

Tr. 13-16.

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. 16.

In his assessment of Plaintiff’s RFC the ALJ found Plaintiff
has the functional capacity to perform a range of light work that
includes being limited to carrying 20 pounds occasionally and 10
pounds frequently; standing and walking six hours in an eighthour workday; sitting six hours in an eight-hour workday;
occasionally climbing ramps, stairs, ladders, ropes, and
scaffolds; and frequently stooping, kneeling, crouching, and
crawling.

Tr. 16-23.

At Step Four the ALJ found Plaintiff is unable to perform
her past relevant work as a registered nurse.

Tr. 23.

At Step Five, however, the ALJ determined Plaintiff acquired
skills from her past relevant work that are transferrable to
other occupations in the national economy and that Plaintiff can
perform, including work as an occupational-health nurse and a

8 - OPINION AND ORDER

medical assistant.

Tr. 23-24.

Accordingly, the ALJ found Plaintiff is not disabled and,
therefore, is not entitled to benefits.

Tr. 24.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) found at Step
Two that Plaintiff’s mental impairments were nonsevere;
(2) discredited Plaintiff’s testimony; and (3) discredited the
opinion of Kate Commerford, Ph.D.
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 supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
9 - OPINION AND ORDER

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).
The “step-two inquiry “ is ‘a de minimis screening device to
dispose of groundless claims.’”

Edlund v. Massanari, 253 F.3d

1152, 1158 (9th Cir. 2001)(quoting Smolen v. Chater, 80 F.3d
1273, 1290 (9th Cir. 1996)).
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 considered the impairments when formulating his
assessment of Plaintiff’s RFC.

Burch v. Barnhart, 400 F.3d 676,

682 (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 found at Step Two
that Plaintiff did not have any mental impairments that
constituted “severe impairments.”

The ALJ declined to include

any mental impairments at Step Two because the ALJ found mentalstatus examinations throughout the record reflects normal
10 - OPINION AND ORDER

findings, the record reflects Plaintiff’s mental-health symptoms
showed improvement, Plaintiff’s “mood problems appear primarily
situational,” and Plaintiff engaged in activities that are
inconsistent with disabling mental-health limitations.

Tr. 15.

Applying the “paragraph B” criteria, the ALJ concluded
Plaintiff’s mental impairments do not cause more than “mild”
limitation in activities of daily living; social functioning; or
concentration, persistence, and pace, and Plaintiff did not have
any episodes of decompensation.

Tr. 15-16.

Accordingly, the ALJ

concluded Plaintiff’s mental impairments were nonsevere.

Tr. 16.

The record reflects, however, that Plaintiff’s mental
impairments are more than minimal.

Although the ALJ correctly

noted there are numerous instances in which Plaintiff’s treatment
providers noted improvement in Plaintiff’s anxiety and depression
symptoms or that Plaintiff’s symptoms were under control at that
time (e.g., Tr. 226, 240, 252, 276, 323, 411, 485, 540), the
record as a whole reflects Plaintiff’s anxiety and depression
were significant issues for which Plaintiff sought consistent
treatment from her primary-care providers as well as Dr.
Commerford.

The ALJ’s determination that Plaintiff’s mental

impairments did not pass the “de minimis screening device to
dispose of groundless claims” at Step Two, therefore, is not

11 - OPINION AND ORDER

supported by substantial evidence in the record.2

See Edlund,

253 F.3d at 1158 (quoting Smolen, 80 F.3d at 1290).
On this record, therefore, the Court concludes the ALJ erred
at Step Two when he found Plaintiff’s mental impairments are
nonsevere.

This error is not harmless because the ALJ did not

include any mental limitations in his assessment of Plaintiff’s
RFC.
II.

See Burch, 400 F.3d at 682.
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.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009).

The claimant, however, need not produce

objective medical evidence of the actual symptoms or their
severity.

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).

2

In contrast, the Court notes many of the factors that the
ALJ relied on in his erroneous assessment that Plaintiff’s mental
impairments were nonsevere at Step Two are appropriately
considered when the ALJ weighs testimonial evidence and assesses
Plaintiff’s RFC.
12 - OPINION AND ORDER

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 he 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).
At the August 5, 2013, hearing, Plaintiff testified she has
difficulty with concentration and memory and cannot perform work
that requires intensive concentration.

Tr. 38.

Plaintiff

stated, however, that she recently completed coursework in
medical coding and was doing an internship four days per week,
eight hours per day.

Tr. 35-36.

Plaintiff testified she

experiences neuropathy in both feet, which makes her feet feel
like they have “fallen asleep.”

Tr. 40-41.

Plaintiff also noted

she suffers from hip and back pain as a result of previous
surgeries, but the pain is not significant.

Tr. 40-41.

In her Adult Function Report dated November 16, 2011,
Plaintiff reported she suffers from “a lot of anxiety and
depression” as a result of losing her previous employment as a
registered nurse.

Tr. 163.

13 - OPINION AND ORDER

Plaintiff stated she exercises on a

treadmill for 30 minutes per day, helps care for her grandson by
preparing meals and provides him with transportation to and from
school, and can perform daily household chores including laundry
and yard work.

Tr. 164-66.

Plaintiff reported she has

difficulty with completing tasks and concentration as a result of
her conditions and can pay attention for “sometimes 30 seconds,
sometimes longer.”

Tr. 168.

In addition, Plaintiff stated she

“feel[s] intimidated by some authority figures” and has a lot of
anxiety when she is around unfamiliar people.

Tr. 168-69.

Finally, Plaintiff stated she “feel[s] better,” is “able to go
about the activities of daily living,” and is “working at finding
work in a different field.”

Tr. 170.

The ALJ discredited Plaintiff’s testimony because her
“allegations of disability have little to no support” and
Plaintiff’s “allegations of daily living are inconsistent with
disability.”

Tr. 17-18.

The Court concludes the reasons the ALJ

provided constitute clear and convincing reasons for discrediting
Plaintiff’s testimony.
The ALJ reasonably concluded Plaintiff’s activities
(including exercising at the gym, passing a medical coding class
and certification examination, and participating in an
internship) are inconsistent with her allegations of disabling
mental and physical limitations.

Tr. 15, 18.

The ALJ also

reasonably concluded treatment providers frequently noted

14 - OPINION AND ORDER

Plaintiff’s anxiety and depression were improving and under
control and that Plaintiff frequently did not report any
significant physical impairments.

See, e.g., Tr. 226, 379, 426,

443, 540.
Accordingly, on this record the Court concludes the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for rejecting Plaintiff’s allegations of
disabling mental and physical impairments.
III. Dr. Commerford’s 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 supported by substantial
evidence in the record.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1232 (9th Cir. 2011).

When the medical opinion of

a 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 1217, 1222 (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, No. 10–36147,

2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen v. Chater,
80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
15 - OPINION AND ORDER

treats the claimant.
Cir. 1995).

Lester v. Chater, 81 F.3d 821, 830 (9th

See also Garrison v. Colvin, No. 12-CV-15103, 2014

WL 3397218, at *13 (9th Cir. 2014).

“The opinion of a

nonexamining physician cannot by itself constitute substantial
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).

A nonexamining physician’s opinion can

constitute substantial evidence if it is supported by other
evidence in the record.

Morgan v. Comm’r of Soc. Sec. Admin.,

169 F.3d 595, 600 (9th Cir. 1999).

See also Simpson v. Astrue,

No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18,
2012).
In a letter dated October 30, 2011, Dr. Commerford reported
Plaintiff’s symptoms of depression included sleep disturbance,
appetite and eating pattern changes, “significant problems with
concentration and decision-making,” decreased motivation,
tearfulness, “worry and ruminations,” low self-esteem, and selfquestioning.

Tr.

214.

16 - OPINION AND ORDER

Dr. Commerford stated Plaintiff

“struggled with completing activities of daily living.”

Tr. 214.

In addition, Dr. Commerford noted Plaintiff
reports limitations in maintaining attention and
concentration, meeting schedules and sustaining
routines, and making simple work-related decisions.
She is not able to complete a normal workday without
interference from psychologically-based symptoms. She
is highly sensitive to feedback or criticism from
supervisors, and finds it difficult to ask for
assistance.
Tr. 215.
On July 27, 2013, Dr. Commerford wrote a letter that was
in many respects identical to her October 30, 2011, letter.
Tr. 589-90.

The July 27, 2013, letter additionally indicated

Plaintiff had completed training in medical coding and billing,
and was completing an internship “in a billing setting,” but
that she had “some problems with memory and concentration
while working at the internship.”

Tr. 590.

In addition,

Dr. Commerford submitted a worksheet reflecting her assessment of
Plaintiff’s mental RFC in which she indicated Plaintiff was
moderately limited in most functions relating to understanding,
memory, concentration, and persistence, but not significantly
limited in most other respects.

Tr. 570-73.

The ALJ gave Dr. Commerford’s opinions “zero weight” on the
grounds that they are inconsistent with the normal mental-status
examination findings and the medical record as a whole, they
are not supported by any mental-status examination findings
or assessments in Dr. Commerford’s treatment notes, and
17 - OPINION AND ORDER

Dr. Commerford relied on Plaintiff’s subjective self-reporting.
The Court notes Dr. Commerford’s opinion was contradicted
by the opinion of Paul Rethinger, Ph.D., a nonexamining
psychologist.

Tr. 56-57.

Accordingly, the ALJ was required to

provide specific and legitimate reasons for discrediting
Dr. Commerford’s opinion.

See Ryan, 528 F.3d at 1198.

Indeed,

the ALJ correctly noted Dr. Commerford’s opinion was explicitly
based in large part on Plaintiff’s subjective reporting.

See Tr.

590 (“Ms. Inskeep reports limitations in maintaining attention
and concentration, meeting schedules and sustaining routines, and
making simple work-related decisions.”) (emphasis added).
Moreover, Dr. Commerford’s testimony that Plaintiff was unable to
maintain her activities of daily living was inconsistent with
many portions of the medical record as well as Plaintiff’s own
testimony.
Accordingly, on this record the Court concludes the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for rejecting Dr. Commerford’s opinion.
IV.

Remand
Having found the ALJ erred when he improperly failed to find

at Step Two that Plaintiff’s mental impairments are severe, the
Court must determine whether to remand this matter for further
proceedings or to remand for the immediate calculation of
benefits.

18 - OPINION AND ORDER

The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

See, e.g., Brewes v. Comm’r Soc.

Sec. Admin., 682 F.3d 1157, 1164 (9th Cir. 2012).

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.”

Id. (quoting Smolen v. Chater, 80 F.3d

1273, 1292 (9th Cir. 1996)).

The Ninth Circuit has established a

three-part test for determining when evidence should be credited
and an immediate award of benefits directed.

Strauss v. Comm’r

of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

The

court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required to
find the claimant disabled were such evidence credited.
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.

See, e.g.,

Harman v. Apfel, 211 F.3d 1172, 1178 n.2 (9th Cir. 2000).
Here further administrative proceedings are necessary to
formulate an assessment of Plaintiff’s RFC that includes
Plaintiff’s mental limitations and to determine whether Plaintiff
is disabled.

Accordingly, the Court remands this matter to the

Commissioner for further administrative proceedings.
19 - OPINION AND ORDER

CONCLUSION
For these reasons, the Court REVERSES the 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.
IT IS SO ORDERED.
DATED this 27th day of June, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

20 - OPINION AND ORDER