Juanita Moreno v. Michael J. Astrue, No. 2:2009cv03644 - Document 24 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR IMMEDIATE AWARD OF BENEFITS by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is reversed and remanded for immediate award of benefits.LET JUDGMENT BE ENTERED ACCORDINGLY. (See attached order for further details.) (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JUANITA MORENO, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-3644-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR IMMEDIATE AWARD OF BENEFITS 17 18 PROCEEDINGS 19 On May 22, 2009, Juanita Moreno ( Plaintiff or Claimant or Moreno ) filed a 20 complaint seeking review of the decision by the Commissioner of Social Security 21 ( Commissioner ) denying Plaintiff s application for Supplemental Security Income ( SSI ) 22 disability benefits. The Commissioner filed an Answer on August 11, 2009. On December 7, 23 2009, the parties filed a Joint Stipulation ( JS ). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 26 ( AR ), the Court concludes that the Commissioner s decision should be reversed and 27 remanded for an immediate award of benefits. 28 1 BACKGROUND 2 Plaintiff Juanita Moreno is a 63 year old female who was determined to have the 3 medically determinable severe impairments of type II diabetes mellitus and degenerative disc 4 disease of the lower thoracic, lumbar and cervical spine. (AR 14.) She also was determined 5 to have the medically determinable but nonsevere mental impairment of depressive disorder. 6 (AR 15.) Plaintiff has not engaged in substantial gainful activity since the August 25, 2006, 7 application date. (AR 14.) 8 Plaintiff s claim was denied initially on May 15, 2007, and on reconsideration on 9 August 12, 1007. (AR 12.) She filed a timely request for hearing, which was held before 10 Administrative Law Judge ( ALJ ) Mary L. Everstine on December 1, 2008, in Santa Barbara, 11 California. (AR 12.) Claimant appeared and testified. (AR 12.) Vocational expert Elizabeth 12 Cerezo also testified. (AR 12.) 13 The ALJ issued an unfavorable decision on January 14, 2009. (AR 12-19.) The ALJ 14 determined that Plaintiff had the residual functional capacity ( RFC )1 to perform the full 15 range of medium work (AR 15), including her past relevant work as a caregiver and driver 16 (AR 18), and other jobs in the national economy in the light work category, such as a 17 companion for domestic care. (AR 18-19.) The ALJ also determined that Claimant has a 18 limited education but is able to communicate in English. (AR 18.) 19 DISPUTED ISSUES 20 As reflected in the Joint Stipulation, the disputed issues that Plaintiff is raising as 21 grounds for reversal and remand are as follows: 22 1. Whether the ALJ properly considered the medical evidence to find that Plaintiff 23 does not suffer from a severe mental impairment. 24 2. Whether the ALJ properly considered the subjective pain testimony of Plaintiff. 25 26 27 28 1 Residual functional capacity is what one can still do despite [his or her] limitations and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 2 STANDARD OF REVIEW 1 2 Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 3 the ALJ s findings are supported by substantial evidence and whether the proper legal 4 standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 5 Substantial evidence means more than a mere scintilla but less than a preponderance. 6 Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 7 U.S. 389, 401 (1971)). 8 Substantial evidence is such relevant evidence as a reasonable mind might accept as 9 adequate to support a conclusion. Richardson, 402 U.S. at 401 (internal quotations and 10 citations omitted). This Court must review the record as a whole and consider adverse as 11 well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 12 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ s 13 decision must be upheld. Morgan v. Comm r, 169 F.3d 595, 599 (9th Cir. 1999). However, 14 a reviewing court must consider the entire record as a whole and may not affirm simply by 15 isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 (quoting 16 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 17 625, 630 (9th Cir. 2007). If the Commissioner cannot meet this burden, then the claimant is 18 entitled to benefits. 19 20 SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any substantial 21 gainful activity by reason of any medically determinable physical or mental impairment which 22 can be expected to result in death or . . . can be expected to last for a continuous period of 23 not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner 24 has established a five-step sequential process to determine whether a claimant is disabled. 25 20 C.F.R. §§ 404.1520, 416.920. 26 The first step is to determine whether the claimant is presently engaging in 27 substantially gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 28 claimant is engaging in substantially gainful activity, disability benefits will be denied. Bowen 3 1 v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant 2 has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. Third, the 3 ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, 4 in Appendix I of the regulations. Id. If the impediment meets or equals one of the listed 5 impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. Fourth, the 6 ALJ must determine whether the impairment prevents the claimant from doing past relevant 7 work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four 8 determination, the ALJ first must determine the claimant s RFC. 20 C.F.R. § 416.920(e). 9 The RFC must consider all of the claimant s impairments, including those that are not 10 severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. If the 11 claimant cannot perform his or her past relevant work, the ALJ proceeds to the fifth step and 12 must determine whether the impairment prevents the claimant from performing any other 13 substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 14 The claimant bears the burden of proving steps one through four, consistent with the 15 general rule that at all times the burden is on the claimant to establish his or her entitlement 16 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 17 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 18 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the 19 Commissioner cannot meet this burden, then the claimant is disabled and entitled to 20 benefits. Id. 21 In this case, the ALJ determined that the Claimant had the medically determinable 22 severe impairments of type II diabetes mellitus and degenerative disc disease. The ALJ, 23 however, concluded at step four of the sequential process that Plaintiff could perform her 24 prior work and at step five that she could perform other jobs in the national economy. 25 The ALJ also determined that Plaintiff had a medically determinable mental 26 impairment of depressive disorder with anxiety but concluded at step two of the sequential 27 process that this impairment was not severe. 28 4 DISCUSSION 1 2 A. The ALJ Failed To Consider Properly Plaintiff s Mental Impairment 3 The ALJ concluded at step two of the sequential process that Plaintiff s medically 4 determinable mental impairment of depression disorder was not severe. Substantial 5 evidence supports the ALJ s determination. The ALJ erred nonetheless in finding that 6 Plaintiff s mental impairments imposed no limitations and by failing to consider Plaintiff s 7 mental impairments in combination with her other impairments in determining her RFC and 8 assessing what jobs she can perform. 9 At step two of the five step sequential inquiry, the ALJ determines whether the 10 claimant has a medically severe impairment or combination of impairments. Bowen, 482 11 U.S. at 140-41. An impairment is not severe if it does not significantly limit the claimant s 12 ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ, however, 13 must consider the combined effect of all the claimant s impairments on his or her ability to 14 function, regardless of whether each alone was sufficiently severe. Id. Also, the ALJ must 15 consider the claimant s subjective symptoms in determining severity. Id. 16 The step two inquiry is a de minimis screening device to dispose of groundless claims. 17 Bowen, 482 U.S. at 153-54. An impairment or combination of impairments can be found 18 nonsevere only if the evidence establishes a slight abnormality that has no more than a 19 minimal effect on an individual s ability to work. Smolen, 80 F.3d at 1290; SSR 85-28; 20 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). 21 In this case, the ALJ determinated that Claimant suffers from the medically 22 determinable mental impairment of depressive disorder with anxiety over her medical 23 condition. At the request of the Social Security Administration, Dr. Jeannette Townsend, 24 Ph.D. performed a comprehensive mental evaluation of Plaintiff on January 27, 2007. (AR 25 14-15, 328-31.) Claimant reported problems with back, body pain and muscle spasms (AR 26 278) and was unable to sit, stand or lie down too long. (AR 279.) She felt depressed about 27 28 5 1 her medical condition. (AR 278.) She reported two years of outpatient therapy but no 2 psychiatric hospitalizations. (AR 278.) 3 Dr. Townsend diagnosed Plaintiff with depressive disorder with anxiety in reaction to 4 medical condition. (AR 280.) According to Dr. Townsend, Plaintiff could understand simple 5 and detailed instructions and some complex instructions. (AR 281.) She was able to do 6 simple repetitive tasks. (AR 281.) She was assessed a GAF of 55. (AR 15, 281.) 7 Dr. Townsend observed that Plaintiff was interrupted by pain during the evaluation and she 8 had to stand up several times. (AR 281.) Dr. Townsend recommended outpatient treatment 9 for Plaintiff s depression. (AR 281.) 10 State agency reviewing psychiatrist Dr. McAuley diagnosed Plaintiff with affective 11 disorder (AR 318) and depressive disorder with anxiety in reaction to medical condition. (AR 12 328.) He failed to mark the box that this impairment was not severe. (AR 328.) Dr. McAuley 13 indicated mild limitations in functioning (AR 326) and moderate limitations in ability to 14 maintain attention, perform activities within a schedule, and complete a normal weekday 15 without interruptions from psychologically based symptoms. (AR 329-30.) He also indicated 16 that Plaintiff is able to do simple repetitive tasks (AR 328) and semi-complex tasks. (AR 17 331.) He opined that her depression is stable with Zoloft. (AR 328.) Dr. McAuley added that 18 most of Plaintiff s limitations are due to physical complaints. (AR 328.) He found her 19 credible. (AR 331.) 20 Both sides mischaracterize the mental evaluation evidence. The ALJ found no 21 limitations due to her depressive disorder (AR 15), which is contrary to Dr. McAuley s 22 evaluation in which he found both mild and moderate limitations in functioning. (AR 326, 23 329-30.) The ALJ also said that Plaintiff testified at the hearing that medication for her 24 depression controls her symptoms. (AR 15.) This misstates Plaintiff s testimony. When 25 asked if medication controlled her depression, Plaintiff stated, I can t say. I don t. I don t 26 know. (AR 77-78.) 27 28 6 1 Likewise, Plaintiff mistakenly interprets the evidence to contain a simple repetitive 2 tasks limitation that precludes semi-skilled work. Neither Dr. Townsend nor Dr. McAuley 3 ever said Plaintiff was limited to simple repetitive tasks. Dr. Townsend said Plaintiff could 4 understand simple and complex instructions. Dr. McAuley said Plaintiff could do semi5 complex tasks. Neither said Plaintiff was limited to unskilled work. Substantial evidence 6 supports the ALJ s determination that Plaintiff s medically determinable mental impairment of 7 depression was nonsevere. 8 The ALJ erred nonetheless. After determining that Plaintiff s mental impairment was 9 not severe, the ALJ decision thereafter never mentions Plaintiff s mental impairment or the 10 limitations resulting from that impairment in determining her RFC and assessing what jobs 11 she can perform. This is probably the result of the ALJ s factually inaccurate conclusion that 12 Plaintiff has no limitations due to her mental impairment. (AR 15.) 13 The ALJ s failure to consider Plaintiff s mental impairments at steps four and five of 14 the sequential process was legal error. Social Security regulations mandate that an ALJ 15 must consider the limiting effects of all your impairment(s), even those that are not severe, 16 in determining your residual functional capacity. 20 C.F.R. § 416.945(e). Social Security 17 Ruling 96-8p also provides: 18 In assessing RFC, the adjudicator must consider limitations and 19 restrictions imposed by all of an individual s impairments, even those that 20 are not severe. While a not severe impairment(s) may not significantly 21 limit an individual s ability to do basic work activities, it may when 22 considered with limitations or restrictions due to other impairments be 23 critical to the outcome of a claim. 24 Thus, Plaintiff s mental impairment should have been considered in assessing Plaintiff s RFC 25 and in determining what, if any, jobs she can perform. The Commissioner argues that the 26 outcome here would have been the same even if limitations resulting from her mental 27 impairment were included in her RFC. This is post hoc reasoning that the Court cannot 28 7 1 consider. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). This contention also 2 assumes no other error. 3 The ALJ erred in yet another way. Ninth Circuit cases make clear that a claimant s 4 impairments must be considered in combination and must not be fragmentized in evaluating 5 their effects. Beecher v. Heckler, 756 F.2d 693, 694 (9th Cir. 1985) (internal quotations and 6 citation omitted). The ALJ must consider the combined effect of all of a claimant s 7 impairments on his or her ability to function without regard to whether each alone was 8 sufficiently severe. Smolen, 80 F.3d at 1290. 9 Here, Plaintiff s mental impairment was integrally related to her medical condition. 10 The ALJ determined on competent medical evidence that Plaintiff suffers from depressive 11 disorder with anxiety in reaction to medical condition. Nowhere does the ALJ decision 12 consider Plaintiff s mental and physical impairments in combination with each other in 13 determining Plaintiff s RFC and deciding the disability issue. 14 B. The ALJ Erred In Rejecting Plaintiff s Subjective Pain Testimony 15 The ALJ found that Plaintiff has the severe medical impairments of type II diabetes 16 mellitus and degenerative disc disease of the lower thoracic, lumbar and cervical spine. (AR 17 14.) The ALJ determined that these medical impairments reasonably could be expected to 18 cause Plaintiff s subjective pain symptoms. (AR 16.) Nonetheless, the ALJ decision 19 concluded that Claimant s symptoms are not credible to the extent they are inconsistent with 20 the assessed RFC. (AR 16.) This finding is unsupported by the evidence and in legal error. 21 The test for deciding whether to accept a claimant s subjective symptom testimony 22 turns on whether the claimant produces medical evidence of an impairment that reasonably 23 could be expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 24 F.2d 341, 346 (9th Cir. 1991); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); 25 Smolen v. Chater, 80 F.3d at 1281-82 esp. n.2. The Commissioner may not discredit a 26 claimant s testimony on the severity of symptoms merely because they are unsupported by 27 objective medical evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the 28 8 1 ALJ finds the claimant s pain testimony not credible, the ALJ must specifically make findings 2 which support this conclusion. Bunnell, 947 F.2d at 345. The ALJ must set forth findings 3 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 4 claimant s testimony. Thomas v. Barnhart, 278 F.3d 949, 958 (9th Cir. 2002); see also 5 Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. 6 Unless there is evidence of malingering, the ALJ can reject the claimant s testimony about 7 the severity of a claimant s symptoms only by offering specific, clear and convincing reasons 8 for doing so. Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ 9 must identify what testimony is not credible and what evidence discredits the testimony. 10 Reddick, 157 F.3d at 722; Smolen, 80 F.3d at 1284. 11 In this case, Plaintiff Juanita Moreno alleges disabling back and neck pain from her 12 degenerative disc disease that makes it difficult for her to sit or stand more than 30-45 13 minutes (AR 78) or to lift, bend or carry heavy things. (AR 76, 141.) Plaintiff s daughter 14 Maria Salazar confirmed these symptoms. (AR 16.) So did Dr. Townsend, who observed 15 that Plaintiff was interrupted by pain during the mental evaluation and had to stand up 16 several times. (AR 281.) The ALJ decision never mentions this important observational 17 evidence. Also confirming Plaintiff s pain symptoms was chiropractor Ted Garcia, who 18 indicated that Plaintiff was unable to bend and stoop, lift more than 10 pounds, or stand more 19 than 2 hours. (AR 497; see also AR 419-96.) 20 As the ALJ concedes, Plaintiff s degenerative disc disease reasonably could cause 21 her pain symptoms. On May 16, 2008, a cervical spine CT exam revealed chronic 22 degenerative disc disease, moderately severe spinal stenosis with cord infringement and/or 23 compression, posterior disc bulge, and bridging anterior endplate osteophytes. (AR 498-99.) 24 A lumbar spine CT on the same date revealed severe degenerative change of the facet joints 25 and a broad degenerative concentric-type bulge which produces mild central stenosis. (AR 26 500-02.) These findings by St. John s Regional Imaging Center confirm earlier radiographs 27 in March of 2007 at Clinicas Del Camino Real that indicated mild to moderate 28 9 1 spondyloarthritic and degenerative disc disease in the thoracic and lumbar spine. (AR 408, 2 411.) 3 There is no evidence of malingering nor does the ALJ assert malingering. 4 Dr. Townsend found her cooperative and an adequate historian. (AR 278.) Dr. McAuley 5 found her credible. (AR 331.) The ALJ did not dispute the statements of Plaintiff s daughter 6 regarding Plaintiff s pain. (AR 116.) Thus, the ALJ can reject Claimant s testimony on the 7 severity of her pain only with specific, clear and convincing reasons for doing so. Smolen, 8 80 F.3d at 1284. 9 The ALJ decision does not meet this high standard. The ALJ advances several 10 reasons for finding Claimant s pain symptoms not credible. (AR 16.) None of these 11 reasons are clear and convincing. 12 First, the ALJ found that Plaintiff lacks credibility because the objective medical 13 evidence does not support her symptoms. (AR 16.) The lack of objective medical evidence, 14 even if true, would not be dispositive as a matter of law. Bunnell, 947 F.2d at 345 ( once the 15 claimant produces objective evidence of an underlying impairment, an adjudicator may not 16 reject a claimant s subjective complaints based solely on a lack of objective evidence ); 17 Rollins, 261 F.3d at 857 (subjective testimony cannot be rejected on sole ground that 18 objective medical evidence is lacking). There must be other evidence to support Plaintiff s 19 subjective symptoms. In particular, the ALJ plainly erred in his treatment of Maria Salazar s 20 testimony. Not offering any legitimate reasons for disputing it, the ALJ decision simply gives 21 greater weight to the documented medical evidence of record. (AR 16.) The ALJ did 22 exactly what case law and regulations forbid. She disregarded important lay witness 23 testimony based solely on the medical evidence. 24 Even though not determinative of the severity of pain, the medical evidence is 25 nonetheless a relevant factor in determining the severity of a claimant s pain. Rollins, 261 26 F.3d at 857; Smolen, 80 F.3d at 1285. Here, though, the ALJ s characterization of the 27 medical evidence is inaccurate and unfair. The ALJ primarily relies on consulting examiner 28 Dr. Michaelson and state agency reviewing physician Dr. Tambellini. (AR 17.) Both of these 10 1 physicians were internists, not orthopedists; Dr. Michaelson explicitly states that his report is 2 an internal medicine assessment. (AR 272.) Dr. Michaelson neither conducted nor ordered 3 radiographs or CT scans, and he did not know the extent of Plaintiff s degenerative disc 4 disease. Even so, he found a 50% decreased range of motion when examining for back 5 pain. (AR 275-76.) The ALJ erred in favoring the testimony of Dr. Michaelson and 6 Dr. Tambellini based on supportability with medical signs and laboratory tests. (AR 16.) 7 Both Dr. Michaelson and Dr. Tambellini completed their reports before the CT scans were 8 done. Nor is it clear that either saw or was aware of the chiropractic evidence. Their 9 assessment that Plaintiff can perform medium exertional work and lift 50 pounds occasionally 10 and 25 pounds frequently is simply not credible. 11 The ALJ also unfairly discounts the chiropractor s opinion because it purportedly is 12 based primarily on the subjective statements of the claimant. (AR 17.) There is no evidence 13 to support this assertion, which is contrary to the record. Mr. Garcia provided physical 14 therapy for two years and was in a position to observe Claimant over a long period of time. 15 (AR 419-96.) Also, the radiographs done at Clinicas Del Camino Real where Mr. Garcia 16 works were consistent with the later CT scans. He clearly did not rely primarily on Plaintiff s 17 own subjective statements. 18 Second, the ALJ asserts that Plaintiff did not receive treatment consistent with her 19 claims of disabling pain. (AR 17.) More specifically, the medical records indicated that 20 Plaintiff received only limited and conservative treatment consisting of physical therapy and 21 pain medication. (See AR 17, 189, 212, 219.) Conservative treatment has been found to 22 suggest a lower level of pain and functional limitation than alleged by the claimant. Johnson 23 v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). The simple answer to this contention is that a 24 definitive diagnosis of degenerative disc disease was not made until May of 2008 and no one 25 ever took Plaintiff s pain seriously before then. Thus, there is no basis for putting the 26 responsibility for more aggressive treatment on Plaintiff, who has a limited education and 27 limited financial means. An ALJ may not draw inferences about an individual s symptoms 28 from a failure to pursue medical treatment without first considering any explanations that a 11 1 claimant may provide. SSR 96-7p at *7; 1996 WL 374186 at *7. In this case, no effort was 2 made to obtain an explanation. The ALJ s conservative treatment ground for rejecting 3 Plaintiff s subjective pain symptoms is not clear and convincing. 4 Third, the ALJ asserts that Plaintiff s depression improved with medication. (AR 15.) 5 This is not quite accurate, as already noted, and in any event has nothing to do with 6 Plaintiff s pain from degenerative disc disease. 7 Fourth, the ALJ found that Plaintiff complained of sleep problems but was hesitant to 8 take pills. (AR 17.) This fact, even if true, does not mean that Plaintiff was not experiencing 9 pain from degenerative disc disease. Plaintiff already was taking several medications. (AR 10 212.) 11 Plaintiff has the medically determinable severe impairment of degenerative disc 12 disease. Her subjective pain symptoms are consistent with the CT scans, the chiropractic 13 evidence, her own testimony, her daughter s testimony, and Dr. Townsend s observation of 14 her pain during the mental evaluation. Her physical pain has resulted in a medically 15 determinable mental impairment that imposes additional limitations. In combination, 16 Plaintiff s degenerative disc disease, her subjective pain symptoms, which must be credited, 17 and her mental impairments that the ALJ and vocational expert did not consider, undermine 18 the ALJ s medium exertion RFC and render the vocational expert s testimony of no 19 evidentiary value. It is not credible that someone with Plaintiff s physical impairments, 20 subjective pain symptoms, and depression could or should perform the functions of a 21 caregiver or domestic companion or could handle the responsibility that goes with those 22 positions. 23 Indeed, the ALJ decision reflects uncertainty as to Plaintiff s occupational capacity and 24 implicitly credits Plaintiff s subject pain symptoms. Initially, the ALJ assigns Plaintiff a full 25 range medium work RFC and concludes that Plaintiff can perform her prior relevant work as 26 a caregiver and bus driver. (AR 18.) The ALJ further concludes that, with additional 27 exertional limitations, Plaintiff could perform her prior work as a caregiver but not as a bus 28 driver. (AR 18.) The ALJ then says that, if some credit is given to Claimant s testimony and 12 1 she is limited to light work, she can perform the job of domestic companion. (AR 17-18.) 2 The problem with the ALJ s analysis, however, is that no one ever asked the vocational 3 expert to accept Plaintiff s subjective pain symptoms or to consider her mental impairments 4 in assessing whether she was capable of performing the caregiver and domestic companion 5 or other jobs. The ALJ also erred in only giving some credit to Plaintiff s subjective 6 symptoms and no consideration at all to her mental impairments in assessing Plaintiff s 7 occupational capacity. 8 Plaintiff s subjective pain symptoms must be credited. As a result, the ALJ s 9 determination that Plaintiff is not disabled is unsupported by substantial evidence and in legal 10 error and must be reversed. 11 DISPOSITION 12 The only remaining question is whether this case should be remanded for further 13 proceedings or an immediate award of benefits. The choice of whether to reverse and 14 remand for further proceedings or for an immediate award of benefits is within the discretion 15 of the Court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Remand is 16 appropriate where additional proceedings would remedy defects in the ALJ s decision and 17 where the record should be developed more fully. Marcia v. Sullivan, 900 F.2d 172, 176 (9th 18 Cir. 1990).2 19 Where the record has been developed fully and further administrative proceedings 20 would serve no useful purpose, the case should be remanded for an immediate award of 21 benefits. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). More specifically, a court 22 should credit the evidence improperly rejected by the ALJ and remand for an award of 23 benefits if: (1) the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff s 24 25 26 27 28 2 See also, generally, INS v. Orlando Ventura, 537 U.S. 12, 16 (2002), holding in an asylum proceeding that the proper course is generally remand to an agency of a matter that states place primarily in agency hands, except in rare circumstances. In Orlando Ventura, however, the Attorney General retained ultimate discretion whereas in Social Security cases benefits are mandatory if a claimant is disabled. Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004). 13 1 evidence; (2) there are no outstanding issues to be resolved; and (3) it is clear that the ALJ 2 would be required to find Claimant disabled if Plaintiff s evidence was credited. Id. 3 This case is similar to Moisa, 367 F.3d at 887. Moisa turned entirely on the credibility 4 of the claimant s subjective pain testimony, which was improperly discounted. Taken as true, 5 his pain testimony established his inability to work. The case required no further agency 6 expertise and was remanded for an immediate award of benefits. Moisa held that the 7 Commissioner, having lost his appeal, should not have another opportunity to prove that 8 Moisa was not credible. Id. 9 Here too, the Court sees no purpose in remanding for further proceedings. Just as 10 occurred in Moisa, the ALJ erred in rejecting Plaintiff s subjective pain symptom evidence 11 which must be credited. The ALJ also erred in failing to consider Plaintiff s mental 12 impairments in the RFC and occupational assessments. The ALJ concedes that, if Plaintiff s 13 subjective pain symptoms were fully credited, she would be disabled. (AR 17.) 14 Additionally, the vocational expert never considered Plaintiff s subjective pain 15 symptoms or mental impairments. As a result, the vocational testimony is of no evidentiary 16 value. The vocational expert s occupational assessments at steps four and five of the 17 sequential process are unsupported by substantial evidence and in legal error. Thus, the 18 ALJ did not meet the Commissioner s burden at step five to prove that Claimant is able to 19 work. The Claimant is disabled. Lounsburry, 468 F.3d at 1114. 20 There are no outstanding issues. Therefore, the case will be reversed and remanded 21 for an immediate award of benefits. 22 23 24 25 26 27 28 14 ORDER 1 2 IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is 3 reversed and remanded for immediate award of benefits. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: August 11, 2010 7 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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