McLeod v. Commissioner Social Security Administration
Filing
33
Opinion and Order - The ALJ's decision that Plaintiff was not disabled is REVERSED AND REMANDED for further proceedings consistent with this Opinion and Order. Signed on 9/28/2018 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARY M.,1
Case No. 3:17-cv-00026-SI
Plaintiff,
OPINION AND ORDER
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.
Bruce W. Brewer, P.O. Box 421, West Linn, OR 97068. Of Attorney for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Lisa Goldoftas, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff Mary M. (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff’s
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case.
PAGE 1 – OPINION AND ORDER
application for Supplemental Social Security Income (“SSI”) under Title XVI of the Social
Security Act. The Commissioner agrees that the Administrative Law Judge (“ALJ”) erred and
thus that the case should be remanded. The parties disagree, however, on the terms of the
remand. For the following reasons, the Court agrees with the Commissioner regarding how this
case should be remanded for further proceedings.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
PAGE 2 – OPINION AND ORDER
BACKGROUND
A. Plaintiff’s Application
Plaintiff was born in 1964, and was 47 years old as of the alleged disability onset date.
AR 34. Plaintiff had a limited education and no past relevant work. AR 34. The Commissioner
denied Plaintiff’s prior applications for disability, and Plaintiff did not appeal those denials.
AR 23. Plaintiff filed the instant application for disability on March 8, 2012. The ALJ denied
Plaintiff’s application on May 27, 2015. AR 20-35. The Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. AR 6-9.
Plaintiff seeks judicial review of the ALJ’s decision.
B. The Sequential Analysis
A claimant is disabled if he or she is unable 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[.]” 42 U.S.C.
§ 423(d)(1)(A). “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 Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
PAGE 3 – OPINION AND ORDER
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
PAGE 4 – OPINION AND ORDER
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
At step one of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 8, 2012, the application date. AR 25. At step two, the
ALJ found that Plaintiff had the following severe impairments: “degenerative joint disease of the
hips; degenerative joint disease of the right shoulder; status-post right SLAP repair and biceps
tenotomy; degenerative disc disease; and, depression[.]” AR 25. At step three, the ALJ found
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the impairments listed in the regulations. AR 26.
The ALJ then determined that Plaintiff retained the RFC to perform light work with the
following limitations:
She has an eighth grade education. She can lift/carry 20 pounds
occasionally, and lift/carry 10 pounds frequently. She can
stand/walk for two hours in an eight-hour workday. She can sit for
eight hours in an eight-hour workday. After each work hour, she
would need to stand for approximately 5-10 minutes while
remaining at her workstation, and then return to sitting. She can
occasionally climb ramps/stairs. She cannot climb
ladders/ropes/scaffolds. She can occasionally balance, stoop, knee,
crouch, and crawl. She can perform occasional overhead reaching
PAGE 5 – OPINION AND ORDER
with her non-dominant right upper extremity. She requires the use
of an assistive device for walking. She should avoid exposure to
hazards, such as unprotected heights and dangerous machinery.
She is able to remember, understand and carryout tasks or
instructions that are consistent with SVP 1 or 2 occupations.
AR 28. At step four, the ALJ found that Plaintiff had no past relevant work. AR 34. At step five,
the ALJ identified two jobs in the national economy that Plaintiff could perform based on her
age, education, work experience, and RFC. The two jobs the ALJ identified that Plaintiff would
be able to perform were Parking Lot Cashier (DOT 211.462-10) and Laundry Folder (DOT
369.687-18). AR 35. The ALJ concluded that Plaintiff was not disabled. AR 35.
DISCUSSION
The primary issue before this Court is whether this case should be remanded for further
proceedings or for an award of benefits for the period after Plaintiff turned age 50, and further
proceedings for the time period before Plaintiff turned age 50. Plaintiff asserts that there should
be an award of benefits as of Plaintiff’s 50th birthday based on the premise that it is clear from
the record evidence that Plaintiff’s exertional limitations places her in the sedentary
“Grid” category, despite the ALJ’s determination that Plaintiff retained the RFC to perform light
work. Plaintiff asserts that under the sedentary Grid, she would be entitled to a finding of
disability as of her 50th birthday. Because this Court disagrees with the premise that the ALJ
erred in determining that Plaintiff retained the RFC to perform light work, this Court does not
order an award of benefits and instead only remands for further proceedings.
A. The Grids
Plaintiff contends that the ALJ erred in determining that Plaintiff retained the RFC to
perform light work. Plaintiff asserts that under the “sedentary” category of the MedicalVocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly
referred to as “the Grids”) she is entitled to a finding of disability as of her 50th birthday. In
PAGE 6 – OPINION AND ORDER
order to use the Grids, “the individual’s residual functional capacity . . . must first be
determined.” Id. “The Grids were designed to relieve the Commissioner of the need to rely on a
vocational expert in every case to establish the number of jobs available to a person with the
claimant’s physical ability, age, education, and work experience.” Barnes v. Berryhill, 895 F.3d
702, 705 (9th Cir. 2018).
The Grids are organized into three tables corresponding to
sedentary, light, and medium work. Each table has five columns.
The first column contains a rule number, and the second through
the fourth delineate the claimant’s age, education, and work
experience (for example, unskilled, none, skilled, semi-skilled, and
“skills transferable” or “skills not transferable”). The fifth column
renders a conclusion of either “disabled” or “not disabled.”
Id. at 705-06. When a plaintiff falls between two categories within the Grids, the ALJ may
consult a VE. SSR 83-12, available at 1983 WL 31253, at *2 (Jan. 1, 1983); Moore v. Apfel, 216
F.3d 864, 870 (9th Cir. 2000). When a single category within the Grids does not adequately take
into account a plaintiff’s abilities and limitations, the ALJ should consult a vocational expert
(“VE”) and only use the Grids as a framework. Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir.
2002).
Plaintiff argues that she should be evaluated using the sedentary grid because of the
ALJ’s finding that plaintiff cannot stand more than two hours per workday, while “light work”
(and thus the light grid) requires the worker to stand approximately six hours per workday. The
DOT definition of light work is as follows:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary
PAGE 7 – OPINION AND ORDER
work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b). Plaintiff’s argument is based on the fact that “a full or wide range of
light work” “requires a good deal of walking or standing.” 20 C.F.R. § 416.967(b). Plaintiff
argues, and the Commissioner does not contest, that Plaintiff could not perform a job that
requires “a good deal of walking or standing” given her RFC limitations.
Although Plaintiff is correct that she could not perform all jobs within the “light”
category, she could potentially perform some. See SSR 83-10, available at 1983 WL 31251, at
*5 (Jan. 1, 1983) (“A job is also in [the light] category when it involves sitting most of the time
but with some pushing and pulling of arm-hand or leg-foot controls.”). Further, Plaintiff’s
limitations require that she stand for approximately five to ten minutes after each hour of sitting.
AR 28. Because the Grids do not account for a limitation in which the individual must alternate
periods of sitting and standing, and because the record is not clear as to whether Plaintiff had the
ability to sit most of the time “with some pushing and pulling of arm or leg controls,” it is not
clear whether the “light exertion” category or the “sedentary exertion” category completely
describes Plaintiff’s abilities and limitations. Thus, in accordance with the step five framework,
the ALJ called a VE to determine whether Plaintiff could perform any jobs in the national
economy based on Plaintiff’s age, education, work experience, and RFC. See SSR 83-12,
available at 1983 WL 31253, at *4 (Jan. 1, 1983) (“In cases of unusual limitation of ability to sit
or stand, a VS should be consulted to clarify the implications for the occupational base.”).
Therefore, because the Court finds that it is ambiguous as to whether there were jobs in the
national economy that the plaintiff could perform in the “light work” category, it agrees with the
Commissioner that a remand for further proceedings, rather than for an award of benefits, is
appropriate.
PAGE 8 – OPINION AND ORDER
B. VE Testimony
Plaintiff further argues that the ALJ erred by relying on unexplained VE testimony that
was inconsistent with the Dictionary of Occupational Titles (“DOT”) and thus a remand is
appropriate. The Commissioner agrees.
If the hypothetical posed to the VE does not reflect all of the claimant’s properly
supported limitations, the VE’s opinion lacks evidentiary value. Flores v. Shalala, 49 F.3d 562,
570 (9th Cir. 1995); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). The limitations in a
VE hypothetical must be supported by substantial evidence in the record. Bayliss, 427 F.3d at
1217-18. If the ALJ calls a VE, the ALJ has an affirmative duty to determine whether the VE’s
testimony diverges from the DOT. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007).
“When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the
adjudicator must elicit a reasonable explanation for the conflict” before relying on vocational
expert testimony. Social Security Ruling (SSR) 00-4p, available at 2000 WL 1898704.
Plaintiff argues that the ALJ erred in failing to elicit an explanation of the conflict
between the VE’s testimony and the DOT. The VE stated that Plaintiff could perform light,
unskilled occupations such as a Parking Lot Cashier (DOT 211.462-010) and Laundry Folder
(DOT 369.687-018). AR 35. The ALJ found that Plaintiff has an RFC limitation of walking or
standing for two hours in an eight-hour workday. AR 28. Plaintiff therefore argues there is a
conflict as the VE testified that Plaintiff could perform two jobs that, because of their “light”
categorization, could require “a good deal of walking or standing” even though the Plaintiff has
an RFC limitation of walking or standing for no more than two hours a day.
The Commissioner concedes that the ALJ erred because the ALJ did not elicit an
explanation of the apparent conflict. The Commissioner notes that some light occupations may
permit sitting most of the time but with some pushing and pulling of arm or leg controls. See 20
PAGE 9 – OPINION AND ORDER
C.F.R. § 416.967(b); see also SSR 83-10. The Commissioner therefore argues that a remand is
appropriate to resolve the conflict with the DOT regarding whether there are representative jobs
in the national economy that Plaintiff could perform. The Commissioner further noted potential
additional error beyond that raised by Plaintiff: that the jobs the ALJ identified require frequent
reaching, but that Plaintiff was limited to occasional overhead reaching on the right.2 The
Commissioner therefore also recommends remanding for additional VE testimony to inquire
about any other conflicts with the DOT.
The Court agrees that remand is necessary, although the Court notes that “[r]elatively few
unskilled light jobs are performed in a seated position.” SSR 83-10, available at 1983 WL
31251, at 4 (1983). Additional VE testimony is needed given that it is not clear from the record
whether “a person with claimant’s profile could perform substantial gainful work in the
economy” because the previous VE testimony did not consider the apparent conflict with the
DOT regarding the two-hour limitation of standing and walking, nor is the record clear as to
whether those and Plaintiff’s other limitations were work-preclusive. Thomas v. Barnhart, 278
F.3d 948, 960 (9th Cir. 2002).
C. Dr. Everson’s Testimony
Finally, Plaintiff argues that the ALJ erred in rejecting Dr. Everson’s medical opinion.
The ALJ is responsible for resolving conflicts in the medical record, including conflicts among
physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir.
2008). The Ninth Circuit distinguishes between the opinions of three types of physicians: treating
physicians, examining physicians, and non-examining physicians. Garrison v. Colvin, 759 F.3d
2
The Court notes that in some instances, a limitation referring to “overhead reaching” may
not be an apparent or obvious conflict with “reaching” and thus an ALJ may not need to ask a
vocational expert about the discrepancy. Gutierrez v. Colvin, 844 F.3d 804, 808-09, 809 n.2 (9th Cir.
2016).
PAGE 10 – OPINION AND ORDER
995, 1012 (9th Cir. 2014). Generally, “a treating physician’s opinion carries more weight than an
examining physician’s, and an examining physician’s opinion carries more weight than a
reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating
physician’s opinion is supported by medically acceptable techniques and is not inconsistent with
other substantial evidence in the record, the treating physician’s opinion is given controlling
weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s opinion that is not
contradicted by the opinion of another physician can be rejected only for “clear and convincing”
reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s
opinion is contradicted by the opinion of another physician, the ALJ must provide “specific and
legitimate reasons” for discrediting the treating doctor’s opinion. Id.
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, inconsistency with a claimant’s daily activities, or
that the opinion is brief, conclusory, and inadequately supported by clinical findings. Bray, 554
F.3d at 1228; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d
at 1042-43. An ALJ errs by rejecting or assigning minimal weight to a medical opinion “while
doing nothing more than ignoring it, asserting without explanation that another medical opinion
is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive
basis” for the ALJ’s conclusion. Garrison¸ 759 F.3d at 1013; see also Smolen, 80 F.3d at 1286
(noting that an ALJ effectively rejects an opinion when he or she ignores it).
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725). In
PAGE 11 – OPINION AND ORDER
other words, “[t]he ALJ must do more than offer his conclusions. He must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d
at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). “[T]he opinion of a nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the
rejection of the opinion of an examining or treating physician.” Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations omitted); but see id. at 600 (opinions of
non-treating or non-examining physicians may serve as substantial evidence when the opinions
are consistent with independent clinical findings or other evidence in the record).
Plaintiff argues that the ALJ did not have “specific and legitimate” reasons for rejecting
Dr. Everson’s testimony. Carmickle, 533 F.3d at 1164. The Court disagrees. The ALJ gave little
weight to treating physician Dr. Everson for the four following reasons: (1) Dr. Everson failed to
consider Plaintiff’s potential to work if Plaintiff had followed up with treatment appointments
and medical advice; (2) Dr. Everson’s testimony was inconsistent with Plaintiff’s daily activities;
(3) Dr. Everson’s opinion appeared to be based on Plaintiff’s subjective symptom testimony;
(4) Dr. Everson’s testimony was inconsistent with medical imaging of Plaintiff’s back and hip;
and (5) Dr. Everson’s opinion was inconsistent with the record as a whole.
The ALJ’s rationale was legally sufficient. The ALJ did not merely state legal
conclusions, but instead specifically found that Dr. Everson’s testimony that Plaintiff cannot
maintain one position for more than several minutes was contradicted by Plaintiff’s reports that
she does yard work, gardens, performs household chores, and drives a car. AR 32. The ALJ also
noted the specific aspects of Plaintiff’s medical record, namely the medical imaging of Plaintiff’s
back and hip, that were not consistent with the opinion of Dr. Everson. AR 32. The ALJ
provided specific, legitimate reasons to discount Dr. Everson’s opinion.
PAGE 12 – OPINION AND ORDER
D. Remand for Further Proceedings
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246
F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to
the agency for additional investigation or explanation, a court has discretion to remand for
immediate payment of benefits, depending on the likely utility of such proceedings. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). A court may not award
benefits punitively and must conduct a “credit-as-true” analysis on evidence that has been
improperly rejected by the ALJ to determine if a claimant is disabled under the Social Security
Act. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this
Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). A district court first determines
whether the ALJ made a legal error and then reviews the record as a whole to determine whether
the record is fully developed, the record free from conflicts and ambiguities, and further
proceedings would serve any useful purpose. Dominguez v. Colvin, 808 F.3d 403, 407 (9th
Cir. 2015). Only if the record has been fully developed and there are no outstanding issues left to
be resolved does the district court consider whether the ALJ would be required to find the
claimant disabled on remand if the improperly discredited evidence were credited as true. Id. If
so, the district court can exercise its discretion to remand for an award of benefits. Id. The district
court retains flexibility, however, and is not required to credit statements as true merely because
the ALJ made a legal error. Id. at 408.
In this case, the record has not been fully developed, there are ambiguities left to resolve,
and there is a useful purpose that would be served by further administrative proceedings. The
ALJ should address the unresolved conflicts between the DOT and the VE testimony regarding
PAGE 13 – OPINION AND ORDER
the two-hour limitation of standing and walking and Plaintiff’s other limitations, and whether
there are other representative jobs in the national economy that Plaintiff could perform.
CONCLUSION
The ALJ’s decision that Plaintiff was not disabled is REVERSED AND REMANDED
for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 28th day of September, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 14 – 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?