Amanti v. Commissioner, Social Security Administration
Filing
15
OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 11/19/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMANDA N. AMANTI,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KATHRYN TASSINARI
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, Oregon 97401
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
WILLY M. LE
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
1 - OPINION
6:11-cv-06378-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff, Amanda N. Amanti brings this action for judicial
review of a final decision of the Commissioner of Social Security
denying
Commissioner)
(the
her
application
Supplemental
for
Security Income (SSI) disability benefits under Title XVI of the
Act.
42 U.S.C.
to 42 U.S.C.
1381-1383f.
§
§§
This court has jurisdiction pursuant
For the reasons set forth
405(g) and 1383(c) (3).
below, I REVERSE the final decision of the Commissioner and REMAND
for further proceedings consistent with this opinion.
PROCEDURAL BACKGROUND
November
On
2008,
19,
filed
protectively
plaintiff
an
application for SSI alleging disability due to obsessive compulsive
disorder, agoraphobia, post traumatic stress disorder, diabetes,
depression,
anxiety,
before
hearing
February
an Administrative
2011,
17,
acid reflux,
in
Eugene,
Law
Judge
Oregon,
represented by counsel and testified.
Expert
(VE)
Jeffrey
F.
Ti ttlefi tz
was
at
(ALJ)
which
11,
127.
A
was
Tr.
and asthma.
held
on
plaintiff
Additionally,
present
was
Vocational
throughout
the
hearing and testified.
On May 16, 2011, the ALJ issued a decision finding plaintiff
not disabled within the meaning of the Act.
After the Appeals
Council denied review, plaintiff timely filed a petition for review
in this court.
2 - OPINION
FACTUAL BACKGROUND
Born on September 14, 1981, plaintiff was 27 years old on the
alleged onset date of disability, and 29 years old on the date of
the hearing.
year
Plaintiff has a high school diploma and completed one
of vocational
training
at
a
Plaintiff has no past relevant work.
beauty
Tr.
college.
31-32.
Tr. 51-52.
Plaintiff alleges her various disabilities became disabling on
Tr. 111.
November 19, 2008.
Plaintiff has seen several medical
professionals for treatment, including her therapist, Irene Stamis
Kulus;
Richard Browning,
a psychiatric and mental
health nurse
practitioner; and Aaron Pardini, M.D., with regard to her diabetes.
Plaintiff was examined by Alison Prescott, Ph.D., who prepared an
Finally, plaintiff's
opinion regarding plaintiff's work capacity.
records were reviewed by Robert Henry, Ph.D., who prepared a Mental
Residual Functional Capacity (RFC) Assessment.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
process for determining whether a person is disabled.
Yuckert,
482
U.S.
416.920(a) (4) (i)-(v).
claimant bears
137,
140-42
(1987);
20
sequential
Bowen v.
C.F.R.
Each step is potentially dispositive.
the burden of proof at
§
The
Steps One through Four.
Tackett v. Apfel, 180 F. 3d 1094, 1098 (9th Cir. 1999).
The burden
shifts to the Commissioner at Step Five to show that a significant
number of jobs exist in the national economy that the claimant can
3 - OPINION
See Yuckert,
perform.
482 U.S. at 141-42; Tackett,
180 F.3d at
1098.
At Step One, the ALJ found that the claimant has not engaged
in substantial gainful activity since the date of the alleged onset
See 20 C.F.R.
of disability.
416.971; Tr. 13.
§
At Step Two, the ALJ found that plaintiff's attention deficit
hyperactivity disorder (ADHD), depressive disorder, posttraumati c
stress
disorder
(PTSD),
panic
disorder
with
agoraphobia,
personality disorder all constituted severe impairments.
C.F.R.
§
Tr.
416.920(c);
13.
Additionally ,
and
See 20.
the ALJ found that
plaintiff's diabetes and left foot pain and swelling were nonsevere
impairments
limitations.
that
did
not
cause
significant
vocational
Tr. 14.
At Step Three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that meet or medically
equaled a listed impairment.
20 C.F.R.
§§
416.920(d),
416.925,
416.926; Tr. 15-17.
The ALJ found that plaintiff had the RFC to perform a full
range of work at all exertional levels, with the non-exertion al
limitations that plaintiff can understand and remember simple oneto three-step instructions, but may occasionally require repeated
instructions .
Tr. 17-20.
out simple routine tasks,
4 - OPINION
The ALJ found that plaintiff can carry
and could interact with familiar co-
workers, but should not have public contact in the work setting.
Tr. 17.
At
relevant work.
found
ALJ
the
Four,
Step
20 C.F.R.
§
plaintiff
that
past
no
has
416.965; Tr. 20.
At Step Five, however, the ALJ found that there are jobs that
exist in significant numbers in the national economy that plaintiff
can perform, including packing line worker, marker II, and garment
sorter.
See 20 C.F.R.
§
416.969; Tr. 21.
the ALJ found that plaintiff was not disabled
Accordingly,
within the meaning of the Act.
ISSUES ON REVIEW
Plaintiff
asserts
that
plaintiff argues
Second,
testimony.
the
ALJ
erred
in
claims
that
incorporate all of plaintiff's limitations,
Prescott's opinion, into the RFC.
the
ALJ
failed
carry its
to
rejected plaintiff's
the ALJ improperly
plaintiff
First,
ways.
three
ALJ
the
failed
to
as described in Dr.
Finally, plaintiff asserts that
burden of proof
in
finding
that
plaintiff retains the ability to perform other work in the national
economy.
STANDARD OF REVIEW
The
court must
affirm the Commissione r's decision
if the
Commissioner applied proper legal standards and the findings are
supported by substantial evidence
405{g); Andrews v.
5 - OPINION
Shalala,
in the record.
53 F.3d 1035,
1039
42
u.s.c.
{9th Cir.
§
1995).
"Substantial evidence means more than a mere scintilla but less
than a preponderanc e; it is such relevant evidence as a reasonable
Id.
mind might accept as adequate to support a conclusion."
weigh all
court must
of
the
whether
evidence,
than
one
rational
decision must be upheld.
or
If the evidence is susceptible
807 F.2d 771, 772 (9th Cir. 1986).
more
supports
Martinez v. Heckler,
detracts from the Commissioner 's decision.
to
it
The
the
interpretatio n,
Andrews,
Commissione r's
If the
53 F.3d at 1039-40.
evidence supports the Commissioner 's conclusion, the Commissioner
must be affirmed;
"the court may not substitute its judgment for
that of the Commissioner ."
Edlund v. Massanari,
253 F.3d 1152,
1156 (9th Cir. 2001).
DISCUSSION
I.
Rejection of Plaintiff's Testimony
In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
First,
416.929.
evidence
of
the
claimant
an underlying
produce
must
impairment
that
expected to produce the symptoms alleged.
F. 3d 1273, 1281-82 (9th Cir. 1996).
20 C.F.R.
§§
404.1529,
objective
medical
could reasonably be
Smolen v. Chater,
80
Second, absent a finding of
malingering, the ALJ can reject the claimant's testimony about the
severity of his
symptoms only by offering specific,
convincing reasons for doing so.
6 - OPINION
Id. at 1281.
clear and
If an ALJ finds that the claimant's testimony regarding his
subjective symptoms is unreliable, the "ALJ must make a credibility
reasons
the
why
the
testimony
is
determination
citing
unpersuasive ."
Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999).
In doing so, the ALJ must identify what testimony is credible and
what
testimony
the
undermines
claimant's
complaints,
and make
''findings sufficiently specific to permit the court to conclude
that the ALJ did not arbitrarily discredit the claimant."
Thomas
v. Barnhart, 278 F. 3d 947, 958 (9th Cir. 2002).
In her Function Report, plaintiff stated that her combination
of disabilities makes it difficult for her to leave the house
without panicking.
Plaintiff claimed that she has poor
Tr. 137.
attention span, can only pay attention for "maybe an hour if I'm
lucky," and only gets three hours of restless sleep per night.
Plaintiff testified that she does not drive because it
135, 139.
"makes her nervous."
struggles
Tr.
to
follow
Tr.
44,
spoken
137.
Plaintiff reported that she
instructions ,
but
does
better with
written instructions , and gets along well with authority figures.
Tr. 139-40.
In caring for her two children, plaintiff stated she
does everything a mother or father would do for their children,
including house cleaning, laundry, and preparing meals.
Tr. 135-
36.
At the hearing, plaintiff testified that she has a friend that
helps her with shopping.
7 - OPINION
With regard to her children, plaintiff
testified that she has attended a
lunch
event
at
son's
her
school,
parent-teach er conference,
and
some
her
of
sporting events when she had somebody to go with her.
When asked how she fills her day,
"constantly find[s]
a
daughter's
Tr. 38-39.
plaintiff testified that she
something to clean," watches television,
and
Tr. 39-40.
crochets.
The ALJ rejected plaintiff's testimony as to the intensity,
persistence, and limiting effects of her symptoms.
ALJ did not make a finding of malingering.
Tr. 18.
The
Therefore, the ALJ was
required to identify clear and convincing reasons for discounting
Smolen, 80 F.3d at 1281.
plaintiff's testimony.
I find the ALJ's
reasons readily meet this standard and are supported by substantial
evidence in the record.
The ALJ found plaintiff's symptom testimony inconsistent with
her activities
plaintiff's
of daily living.
alleged
disabilities ,
The ALJ noted that,
she
reported
"everything a mom/dad would do for their kids."
that
despite
she
Tr. 18, 135.
did
In
addition, as the ALJ noted, plaintiff reported that she uses public
transportatio n and shops in stores despite her disability.
137.
Tr. 18,
Finally, the ALJ noted several instances after the alleged
onset of plaintiff's disability where plaintiff reported going out
of town,
including a fourteen day honeymoon in February of 2009;
March, April, and July 2009 trips to care for her ill mother-inlaw; and a four-to-six-w eek trip to Los Angeles as her "marriage
8 - OPINION
was falling apart" in October of 2009, to "help grandparents ."
18-19, 293, 295, 299, 382, 385.
Tr.
Considering a significant portion
of plaintiff's alleged disability is anxiety caused by leaving her
home and being among the public, the ALJ reasonably could find that
plaintiff's activities are inconsistent with her allegation that
she is completely unable to work due to her symptoms.
In
the
addition,
plaintiff's
evaluation
ALJ
Dr.
several
inconsistenc ies
that
The
ALJ
noted
Prescott,
the
in
psychologist
statements.
with
noted
in
plaintiff's
designated
to
examine plaintiff with respect to her disability claim, plaintiff
reported that she had never been married.
Tr. 19, 332.
The ALJ
noted several instances where plaintiff indicated that she was
married.
Plaintiff does not dispute the accuracy of Dr. Prescott's
note, but instead argues that there is no evidence in the record
that she was ever married.
Pl.'s Brief at 15; Pl.'s Reply at 6-7.
Plaintiff's argument misses the point.
Plaintiff's actual
marital status is not at issue- instead, the ALJ found plaintiff's
reports to her health care providers inconsistent and discredited
her on that basis.
To be sure, the ALJ's findings in this respect
are readily supported by substantial evidence in the record.
On
February 4, 2009, plaintiff reported to her therapist that she was
to get married the next day and go on a two-week honeymoon.
299.
Tr.
Plaintiff also told her therapist three times that she was
leaving town to take care of her sick mother-in-law .
9 - OPINION
Tr. 293, 295,
385;
Plaintiff told Dr.
Pl.'s Reply at 5.
Pl.'s Brief at 14;
Pardini on March 31, 2008 that she was married with two children.
Tr. 220.
On May 29, 2009, plaintiff referred to her "spouse" in an
plaintiff
apart.'"
told
therapist
her
falling
was
"'marriag e
her
that
2009,
On October 23,
388.
Tr.
appointme nt with her therapist .
Finally, on October 7, 2010,
Tr. 382; Pl.'s Brief at 14.
Prescott that she had
a little over a month before telling Dr,
never been married, plaintiff told her therapist that the car she
thought was stolen was "found at 'my husband's friend's garage.'"
Tr.
366.
Based
on
evidence,
this
plaintiff 's statement to Dr.
married
inconsist ent
Prescott that
appropria tely discredite d plaintiff 's
found
reasonably
she has never been
reports,
other
her
with
ALJ
the
the
and
testimony on that
ALJ
basis.
_g;_,_g_,_, Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (an ALJ
may use
ordinary technique s
of
credibili ty evaluation
such
as
inconsiste nt statement s to discredit claimant) .
Additiona lly,
the
ALJ
found
plaintiff 's
that
regarding her driving were inconsiste nt.
by substanti al evidence in the record.
statement s
This finding is supported
The ALJ noted that in her
Function Report plaintiff reported that she did not drive because
it makes her too nervous.
Tr. 19, 137.
Plaintiff repeated this
assertion at the hearing, explaining that "being behind the wheel
scares me to death."
10 - OPINION
Tr.
44.
Yet,
as
the ALJ pointed out,
plainti ff told Dr. Prescot t that she drives when she has to, such
Tr.
as when she cannot get a ride or has to get to an appointm ent.
334.
Plaintif f reported to Dr. Prescott that she owes fines for
driving without a license, and has been jailed for driving with a
333.
Tr.
suspende d license.
The record reflects that plainti ff
twice cancelle d therapy appointm ents due to car trouble, Tr. 367,
391, reported being in a car acciden t, Tr. 298, and once locked her
the
hearing
she
admitted
plaintif f
no
longer
The ALJ reasonab ly could
4 4.
Tr.
license.
Moreove r, as the ALJ noted, at
Tr. 398.
glucose logs in her car.
has
find
a
driver's
plainti ff's
testimon y that she is afraid to drive inconsi stent with her report
Burch, 400 F.3d at 680.
to Dr. Prescott .
The ALJ also noted that plaintif f stated in her Function
Report that she enjoyed reading, and testifie d at the hearing that
she read "a lot."
Dr.
Prescot t,
Tr. 40, 138.
that she did "not read very much as she
however,
cannot concent rate."
As the ALJ noted, plainti ff told
Tr.
334.
The ALJ reasonab ly found these
stateme nts inconsi stent.
Finally, the ALJ discred ited plainti ff's testimon y because she
has
no
signific ant
work
history.
Tr.
19.
supporte d by substan tial evidence in the record.
plainti ff
has
essenti ally
never
worked,
This
finding
is
As the ALJ noted,
reportin g
very
brief
employm ent as a retail associa te and office assistan t in 1999, and
11 - OPINION
Tr. 32-34,
some later part-ti me work as a child care provid er.
A claima nt's lack of work history is a basis upon which an
142-49 .
ALJ may discre dit the claima nt's testimo ny that her disabi lity
preclud es work.
Thomas v. Barnha rt, 278 F.3d 947,
959 (9th Cir.
After a review of the record , I find the ALJ cited clear
2002) .
and convin cing reason s, suppor ted by substa ntial eviden ce in the
record , to reject plaint iff's testimo ny.
Incorp oration of Medica l Testimo ny into RFC
II.
Plaint iff argues that the ALJ failed to incorp orate all of the
limita tions include d in Dr. Presco tt's opinion into the RFC.
The
RFC must include all limitat ions suppor ted by substa ntial eviden ce
See Baylis s v. Barnha rt, 427 F.3d 1211, 1217 (9th
in the record .
Simila rly, where the ALJ poses a hypoth etical questio n
Cir. 2005).
to
a
VE
relies
and
the
on
include
all
subseq uent
of
the
testimo ny,
plaint iff's
the
ALJ's
functio nal
hypoth etical
must
limita tions.
Flores v. Shalal a, 49 F.3d 562, 570 (9th Cir. 1995).
Where the ALJ credits the opinion of a physic ian,
the ALJ must
transla te the plaint iff's condit ion as describ ed in the physic ian's
opinion
into
functio nal
Daniels on v. Astrue ,
limitat ions
in
the
RFC.
See
539 F. 3d 1169, 1174 (9th Cir. 2008).
Stubbs "[A]n
ALJ's assessm ent of a claima nt adequa tely capture s restric tions
related to concen tration , persist ence, or pace where the assessm ent
is
consis tent
12 - OPINION
with
restric tions
identi fied
in
the
medica l
(8th Cir.
(citing Howard v. Massanari,
Id.
testimony."
Smith v.
2001);
255 F.3d 577,
307 F. 3d 377,
Halter,
582
(6th Cir.
379
2001)).
As relevant here, in her Medical Source Statement of Ability
To Do Work-Related Activities
plaintiff
had
a
(Mental),
limitation
marked
appropriately with supervisors.
Dr.
ability
in her
Tr. 341.
Prescott found that
to
interact
When asked what factors
supported that assessment, Dr. Prescott wrote that plaintiff has an
"unstable
affect
She
irritably.
Additionally ,
Dr.
and labile mood with a
has
high
anxiety
and
tendency to
few
coping
lash out
resources."
Prescott found that plaintiff had a limitation
with regard to her ability to keep "[s]ustained attention on a task
-
this client cannot focus well on work tasks.
distracted."
In this
She is easily
Tr. 341.
case,
the ALJ gave
Ultimately,
Dr.
Prescott's opinion "great
the ALJ found that the RFC and
weight."
Tr.
available
jobs identified by the VE fit within the limitations
19.
assessed by Dr. Prescott.
Additionally , Robert Henry, Ph.D., a non-examinin g reviewing
physician,
found that
plaintiff was moderately limited
ability to maintain concentration , persistence, and pace.
in
her
Tr. 354.
Dr. Henry also found plaintiff moderately limited in her ability to
maintain attention and concentration for extended periods.
13 - OPINION
Tr.
358.
However, Dr. Henry found that plaintiff was not significantly
limited in her ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and to
perform at a
consistent pace without an unreasonable number of
Tr. 359.
length and rest periods.
plaintiff
is
to
able
carry
out
As such, Dr. Henry noted that
routine
simple,
tasks
on
a
consistent basis, and that "there is no indication that [plaintiff)
would require special or constant supervision in order to remain on
task."
Tr. 360.
The ALJ also gave Dr. Henry's opinion substantial
weight, and adopted his findings in determining plaintiff's mental
RFC.
Tr. 20.
The ALJ translated the limitations described by Dr. Prescott
and Dr. Henry into the following RFC:
and
remember
simple
occasionally require
simple routine tasks.
one-
to
plaintiff "can understand
three-step
instructions,
repeated instructions.
but
may
She can carry out
The claimant should not have public contact
in a work setting, but could interact appropriately with coworkers
with
whom
she
is
familiar."
Tr.
17.
Additionally,
in
the
vocational hypothetical posed to the VE, the ALJ included a marked
limitation in interacting appropriately with a supervisor.
Tr. 53.
Based on this RFC and the ensuing hypothetical, the VE testified,
and the ALJ found, that there are jobs that exist in the national
economy that plaintiff can perform.
14 - OPINION
Tr. 21, 51-55.
Plaintiff makes two arguments with respect to incorporating
Dr.
Prescott's opinion into the RFC.
First, plaintiff complains
that the RFC and resulting hypothetical was defective because her
marked
capture
adequately
Prescott.
interacting
in
limitation
all
the
of
with
did
supervisors
not
by
Dr.
described
limitations
Specifically, plaintiff argues that
Pl.'s Brief at 11.
the ALJ erred in not including Dr. Prescott's handwritten note that
plaintiff had an "unstable affect and labile mood" with a tendency
to lash out irritably in the RFC and hypothetical.
I disagree with plaintiff's first argument.
Id.
In arriving at an
RFC and posing a hypothetical to a VE, the ALJ must translate the
limitations described by credited medical opinions into functional
limitations.
case,
See Stubbs-Danielson, 539 F.3d at 1173-74.
the ALJ did so by posing Dr.
In this
Prescott's conclusion as to
plaintiff's ability to interact appropriately with supervisors to
The ALJ here properly included Dr.
the VE in the hypothetical.
Prescott's
regard
conclusion about
to
hypothetical;
interaction
he
did
plaintiff's marked
with
not
need
supervisors
to
in
additionally
limitation with
the
vocational
include
every
symptomatic term Dr. Prescott used in arriving at that conclusion.
Stubbs-Danielson, 539 F.3d at 1174 (citing Howard, 255 F.3d at 582;
Smith, 307 F. 3d at 379).
The ALJ's reliance on the VE's testimony,
in this respect, was not error.
15 - OPINION
Second,
plaintiff argues that the ALJ erred in failing to
include Dr. Prescott's conclusion that plaintiff was limited in her
ability to maintain "sustained attention on a task."
at 12; Tr. 341.
Here,
Dr.
Pl.'s Brief
On this point, I agree with plaintiff.
Prescott
found
that
plaintiff
had
difficulty
Yet,
maintaining sustained attention on work tasks.
as
noted
above, Dr. Henry found that plaintiff was not significantly limited
in her ability to work at a consistent pace,
and she would not
need constant supervision to stay on task.
The ALJ,
however,
purported to credit the opinions of both Drs. Henry and Prescott
without
sufficiently
resolving
this
conflict.
Additionally,
neither the RFC nor the vocational hypothetical contained the focus
and concentration limitations described by Drs. Prescott and Henry.
This case is similar to Brink v. Comm'r Soc. Sec. Admin., 343
Fed. Appx. 211, 2009 WL 2512514 at *1 (9th Cir. 2009).
ALJ credited medical
evidence
that
the
There, the
plaintiff had moderate
difficulty maintaining concentration, persistence, or pace.
ALJ' s hypothetical,
repetitive
work."
Commissioner's
however,
Id.
argument
The
only limited plaintiff to "simple,
The
that
Ninth
the
Circuit
"simple,
rejected
repetitive
the
work"
limitation accommodated the plaintiff's concentration, persistence,
and pace limitations, and remanded for the Commissioner to clarify
the hypothetical to account
16 - OPINION
for the plaintiff's
concentration,
finding.
the
instructions •
repeated
"occasional
misses
limitation
plaintiff
that
instructions ,
the
focus
plaintiff's
of
substance
the
and
While the RFC and hypothetical did
concentration limitations.
consider
disability
a
Id. at *1-*2.
Here,
similarly
new
and make
limitations,
pace
and
persistence,
occasionally
may
this
ALJ treated
repeated
require
relating
as
limitation
to
plaintiff's cognitive ability to understand instructions , rather
Tr. 54.
than her sustained ability to focus on work tasks.
The
question with regard to this limitation is not whether plaintiff
can
understand
capacity
to
instructions,
stay
on
task
but
such
whether
she
is
employment
that
the
has
mental
available.
Because the ALJ did not formulate the RFC in such a way as to
resolve the conflict between the opinions of Drs.
Prescott and
Henry, or include any attendant focus limitations in the RFC and
vocational hypothetical , the ALJ has erred.
III. Other Work in the National Economy
When an ALJ finds that the claimant's impairments preclude him
from performing past
relevant
work,
the
burden
shifts
to
the
Commissioner at Step Five to show that the claimant can perform
other work that exists
economy.
1071
in significant numbers in the national
Lockwood v. Comm'r Social Sec. Admin.,
(9th Cir. 2010).
17 - OPINION
616 F.3d 1068,
The Commissioner can meet this burden by
having a
vocational
expert testify at
vocational hypothetical.
1094,
1101
(9th
Cir.
Id.
the
hearing based on
a
(quoting Tackett v. Apfel, 180 F.3d
1999)).
A
vocational
hypothetical
is
sufficient if it includes all of the claimant's limitations that
are supported by substantial evidence in the record.
427 F. 3d at 1217-18.
See Bayliss,
An ALJ may exclude limitations unsupported by
substantial evidence in the record.
Id.
Because the RFC and resultant vocational hypothetical were in
error, the Commissioner cannot rely on the VE testimony to carry
his burden that plaintiff can perform other work available in the
national
economy.
Commissioner,
I
Because
this
necessitates
a
remand
to
the
decline to address plaintiff's other Step Five
arguments.
IV.
Remand
After finding the ALJ erred, this court has the discretion to
remand
for
benefits.
further
or
for
immediate
payment
of
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert.
denied, 531
further
proceedings
u.s.
1038 (2000).
proceedings.
appropriate where
there
The issue turns on the utility of
A remand
is
no
for
useful
an
award
purpose
of
to
benefits
be
is
served by
further proceedings or where the record is fully developed.
The
Ninth Circuit
has
established a
three-part
test
"for
determining when evidence should be credited and an immediate award
18 - OPINION
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 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.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has
discretion
whether
to
credit
the
evidence.
Connett
v.
Barnhart, 340 F.3d 871, 876 (9th Cir. 2003).
In
this
case,
there
are
outstanding
issues
that
must
resolved before a determination of disability can be made.
the
ALJ
erred
in
failing
to
include
plaintiff's
be
Here,
focus
and
concentration limitations in the RFC and vocational hypothetical,
or to resolve the conflict as to the extent and nature of the
plaintiff's
alleged
limitation.
Specifically,
it
is
unclear
whether Dr. Prescott's finding that plaintiff "cannot focus well on
work tasks" and is "easily distracted"
is consistent with
Dr,
Henry's findings of moderate limitations with regard to the ability
to maintain concentration,
persistence,
or pace,
and yet is not
significantly limited in her abilities to work at a consistent pace
and work without constant supervision.
19 - OPINION
Accordingly, on remand the ALJ should determine whether the
opinions of Drs. Henry and Prescott are consistent.
If so, the ALJ
should explain why the opinions are consistent, and translate them
into a functional limitation to be incorporated into a new RFC and
vocational
hypothetical.
If
the
ALJ
finds
the
opinions
are
inconsistent with each other, he should credit one opinion over the
other in this respect,
and accordingly incorporate the credited
opinion into a new RFC and vocational hypothetical.
The ALJ must
provide
one
legally
sufficient
opinion over the other.
(9th Cir. 1995).
See
reasons
for
crediting
doctor's
Lester v. Chater, 81 F.3d 821, 830-31
In doing so, however, the ALJ may utilize all of
the traditional tools of weighing medical opinions, including the
nature
of
opinions'
rely
on
the
doctor's
relationship
with
the
plaintiff,
the
internal consistency, the extent to which the opinions
plaintiff's
discredited
testimony,
and
the
opinions'
consistency with plaintiff's activities of daily living.
In short,
resolved,
because outstanding issues remain which must be
and it is not clear from the record that Plaintiff is
entitled to disability benefits,
the
Court
reverses
the ALJ's
decision and remands for further administrative proceedings.
Ill
Ill
Ill
20 - OPINION
CONCLUSION
Based
on
the
foregoing,
the
Commissioner's
decision
is
REVERSED, and this case is REMANDED pursuant to sentence four of 42
U.S.C.
§
405(g) for further administrative proceedings consistent
with this opinion.
IT IS SO ORDERED.
DATED this ~day of November, 2012.
Malcolm F. Marsh
United States District Judge
21 - OPINION
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