Linnie Louise Jacobs v. Michael J Astrue, No. 2:2012cv02689 - Document 26 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for payment of benefits, consistent with this decision. (mr)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 LINNIE LOUISE JACOBS, 13 Plaintiff, 14 v. 15 16 CAROLYN W. COLVIN, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-2689 SS MEMORANDUM DECISION AND ORDER 19 20 I. 21 INTRODUCTION 22 23 Linnie Louise Jacobs ( Plaintiff ) seeks review of the final 24 decision of the Commissioner of the Social Security Administration (the 25 Commissioner or the Agency ) to deny her application for Supplemental 26 Security Income ( SSI ) Benefits. The parties consented, pursuant to 27 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States 28 1 Magistrate Judge. For the reasons stated below, the decision of the 2 Commissioner is REVERSED and REMANDED for payment of benefits. 3 4 II. 5 PROCEDURAL HISTORY 6 7 Plaintiff filed an application for SSI on March 27, 2006, alleging 8 a disability onset date of March 27, 2006. 9 was denied on July 13, 2006. on August 31, (AR 187). (AR 99-103). 2006. (AR Plaintiff requested a 10 hearing 11 Administrative Law Judge ( ALJ ) Dean Franks issued a decision denying 12 benefits. (AR 83-89). Plaintiff requested review of the ALJ s decision 13 on December 16, 2008. 14 Council vacated the ALJ s decision and remanded the case for further 15 proceedings. (AR 96-98). The case was heard before ALJ Sally C. Reason 16 on April 27, 2011. 17 denying benefits. 18 Plaintiff s request for review of the ALJ s decision. 19 Plaintiff then filed the instant action on April 2, 2012. (AR 143). (AR 63). 104). The application On October 8, 2008, On December 16, 2010, the Appeals On May 26, 2011, the ALJ issued a decision (AR 20-31). The Appeals Council subsequently denied (AR 1-7). 20 21 III. 22 FACTUAL BACKGROUND 23 24 Plaintiff was born on March 5, 1948. (AR 187). Plaintiff 25 completed school through the twelfth grade and can communicate in 26 English. (AR 69). 27 representative. Plaintiff last worked in 1998 as a customer service (Id.). She stopped working after her back went out 28 2 1 during work. (AR 73). Plaintiff claims that the pain grew worse over 2 time. (Id.). Plaintiff alleges that she can no longer work because she 3 suffers from chronic pain in her back, arms and legs. (AR 69-79). 4 5 A. Plaintiff s Testimony 6 7 Plaintiff testified that she suffers from constant back pain. (AR 8 72). She claims that her back pain radiates up to her arms, especially 9 her left shoulder, and down through her legs to her feet. also experiences numbness in her lower body. (AR 72). 10 Plaintiff (Id.). 11 Plaintiff claims that she can sit for only twenty to thirty minutes 12 because her back goes out and she experiences muscle spasms. 13 76). 14 about half a block to a block and that she can lift only about ten 15 pounds. (AR 70, In addition, Plaintiff testified that she can walk no more than (AR 76). 16 17 Plaintiff also claims that she suffers from headaches, anxiety and 18 depression. (AR 77). Plaintiff experiences headaches everyday. 19 78). She claims that her headaches stem from her back pain and that her 20 medications help relieve some of the pain. 21 testified that she has trouble sleeping and is tired throughout the day. 22 (AR 77-78). 23 dealing with people and has no interest in any activities. 24 She claims that her depression causes her to shut down and not deal 25 with anyone or anything. (AR 78-79). (AR Plaintiff also With respect to her depression, Plaintiff has problems (AR 77). 26 27 28 3 (AR 77). 1 B. Plaintiff s Medical History 2 3 Dr. Kathleen Presutto-Nelson examined Plaintiff on May 26, 2000. 4 (AR 280). In her report, Dr. Nelson noted that Plaintiff had undergone 5 several 6 medications in connection to her back pain. 7 reported possible lumbosacral radiculopathy and possible lumbar disk 8 disease. 9 regularly treated Plaintiff with a series of lumbar epidural injections. 10 (AR 265-79). Plaintiff underwent lumbosacral spine surgery on September 11 13, 2000. treatments, including (AR 281). physical therapy, nerve (AR 280). block and Dr. Nelson Between June and September 2000, Dr. Nelson (AR 265). 12 13 After her surgery, Plaintiff was treated by physicians at Kaiser 14 Permanente. (AR 312-770). Dr. Thomas Stephenson examined Plaintiff on 15 August 13, 2008. 16 of motion of the lumbar spine and tenderness to palpation and spasms to 17 the lumbar and lumbosacral spine. 18 degeneration of the lumbosacral intervertebral disc, spondylolisthesis, 19 and arthropathy of lumbar facet. (AR 369-72). Dr. Stephenson observed limited range (AR 371). Dr. Stephenson reported (Id.). 20 21 A July 24, 2008 x-ray of Plaintiff s lumbosacral spine showed 22 spondylolisthesis and degenerative facet joint changes, as well as 23 decreased 24 Moreover, a December 19, 2008 MRI of Plaintiff s lumbar spine showed 25 degenerative changes in the lumbar spine, levoscoliosis, stenosis, and 26 anterolisthesis. (AR 314). disc space associated with 27 28 4 sclerosis. (AR 342, 370). 1 On August 12, 2009, Dr. Gregory Helman reported that Plaintiff 2 experienced left hand numbness and weakness. (AR 644). Moreover, Dr. 3 Helman reported that, although Plaintiff s left arm strength is 5 out 4 of 5," her left arm is weaker than her right. 5 2011, Dr. William Tallakson examined Plaintiff and reported tenderness 6 to palpation over Plaintiff s left shoulder, as well as limited range 7 of motion and a positive impingement test. (AR 689). Finally, a January 8 22, 2011 x-ray of Plaintiff s left shoulder showed joint arthrosis and 9 mild lateral downsloping of the acromion.1 (AR 695). (AR 645). On January 19, 10 11 C. Plaintiff s Consultative Examinations 12 13 On June 26, 2006, Dr. William Boeck, an orthopedic surgeon, 14 examined Plaintiff at the request of the California Department of Social 15 Services. 16 Boeck observed limited range of motion during flexion, extension, 17 abduction, and adduction exercises. 18 positive findings that objectively support limited motions in the 19 cervical and lumbar areas and limited motions in the shoulders. 20 289). 21 occasionally, ten pounds frequently, stand and walk two hours in an 22 eight-hour workday, sit six hours in an eight hour workday, and that 23 she cannot reach overhead with the left arm. (AR 285-89). With respect to Plaintiff s left shoulder, Dr. (Id.). Dr. Boeck further reported (AR Dr. Boeck concluded that Plaintiff can lift twenty pounds (Id.). 24 25 26 27 28 1 The acromion is the outer end of the spine of the scapula that forms the outer angle of the shoulder. http://www.merriam-webster.com/medical/acromion 5 1 On July 5, 2006, A. R. Suarez, a disability examiner with the State 2 Agency, assessed Plaintiff s residual functional capacity ( RFC ).2 (AR 3 290-97). 4 reported that Plaintiff can lift twenty pounds occasionally and ten 5 pounds frequently, stand or walk at least two hours in an eight hour 6 workday, and sit for about six hours in an eight hour workday. 7 291). 8 lower extremities, and that she is unable to reach overhead with her 9 left arm. After reviewing Plaintiff s medical records, Mr. Suarez (AR Mr. Suarez also noted that Plaintiff is limited in her upper and (Id.). 10 11 On May 13, 2008, Dr. Rosa Colonna, a clinical psychologist, 12 examined Plaintiff at the request of the California Department of Social 13 Services. 14 of Plaintiff s medical records, Dr. Colonna opined that Plaintiff s 15 cognitive abilities fall within the low average range. 16 Furthermore, Dr. Colonna reported that Plaintiff s results from a 17 depression evaluation test indicate that Plaintiff suffers from severe 18 depression. 19 dysthymia.3 (AR 300-05). (AR After a psychological examination and a review 303). Dr. Colonna diagnosed (AR 305). Plaintiff with 20 21 22 23 24 25 26 27 28 2 Residual functional capacity is what [one] can still do despite [her] limitations and represents an assessment based upon all the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 3 A chronic mood disorder manifested as depression for most of the day, more days, than not, accompanied by some of the following symptoms: poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration, difficulty making decisions, and feelings of hopelessness. Stedman s Medical Dictionary 536 (26th ed. 1995). 6 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity4 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) Is the If so, the claimant is found not disabled. claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the three. 24 (3) 25 If so, proceed to step Does the claimant s impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, 26 27 28 4 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. See 20 C.F.R. §§ 404.1510, 416.910. 7 1 Subpart P, Appendix 1? 2 disabled. 3 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 4 so, the claimant is found not disabled. 5 If to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 12 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 13 14 The claimant has the burden of proof at steps one through four, and 15 the Commissioner has the burden of proof at step five. Bustamante, 262 16 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist 17 the claimant in developing the record at every step of the inquiry. Id. 18 at 954. If, at step four, the claimant meets his burden of establishing 19 an inability to perform past work, the Commissioner must show that the 20 claimant can perform some other work that exists in significant 21 numbers in the national economy, taking into account the claimant s 22 residual functional capacity, age, education, and work experience. 23 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 24 404.1520(g)(1), 416.920(g)(1). 25 testimony of a vocational expert ( VE ) or by reference to the Medical- 26 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 27 Appendix 2 (commonly known as the Grids ). 28 F.3d 1157, 1162 (9th Cir. 2001). The Commissioner may do so by the Osenbrock v. Apfel, 240 When a claimant has both exertional 8 1 (strength-related) and non-exertional limitations, the Grids are 2 inapplicable and the ALJ must take the testimony of a vocational expert. 3 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. 4 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). 5 6 V. 7 THE ALJ S DECISION 8 9 The ALJ employed the five-step sequential evaluation process and 10 concluded, at step one, that Plaintiff had not engaged in substantial 11 gainful activity since her alleged disability onset date of March 27, 12 2006. 13 following severe impairments: degenerative disc disease of the lumbar 14 spine, obesity, and degenerative joint disease. 15 the ALJ found that Plaintiff does not have a severe mental impairment. 16 At step three, the ALJ found that Plaintiff does not have an impairment 17 or combination of impairments that meets or medically equals one of the 18 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (AR 26). (AR 24). At step two, the ALJ found that Plaintiff has the (Id.). Furthermore, 19 20 The ALJ then found that Plaintiff has the residual functional 21 capacity to perform the full range of sedentary exertional work as 22 defined in 23 vocational expert s opinion, the ALJ determined that Plaintiff is 24 capable of performing her past relevant work as an order clerk/customer 25 service representative at a call center as actually performed by 26 Plaintiff. (AR 29-30). 27 five and instead found that Plaintiff was not disabled within the 28 meaning of the Social Security Act. (AR 30). 20 CFR 416.967(a). (AR 27). After considering the Accordingly, the ALJ did not proceed to step 9 1 VI. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The court may set aside the 6 Commissioner s decision when the ALJ s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 9 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 10 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 11 12 Substantial evidence is more than a scintilla, but less than a 13 preponderance. 14 112 F.3d 1064, 1066 (9th Cir. 1997)). 15 a reasonable person might accept as adequate to support a conclusion. 16 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 17 determine whether substantial evidence supports a finding, the court 18 must consider the record as a whole, weighing both evidence that 19 supports 20 conclusion. 21 F.3d 953, 956 (9th Cir. 1993)). 22 either affirming or reversing that conclusion, the court may not 23 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 24 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 If the evidence can reasonably support 25 26 27 28 10 1 VII. 2 DISCUSSION 3 4 Plaintiff contends that the ALJ erred in her assessment of 5 Plaintiff s RFC. Specifically, Plaintiff argues that 1) the ALJ failed 6 to weight 7 Plaintiff s left shoulder, 2) failed to accurately evaluate Plaintiff s 8 mental impairment 9 convincing reasons for rejecting Plaintiff s subjective testimony. The give proper 10 Court agrees. 11 at to step Dr. Boeck s two, and 3) medical failed opinion to give regarding clear and Accordingly, as discussed below, the Court remands and awards benefits. 12 13 14 A. The ALJ Failed to Provide Clear and Legitimate Reasons For Rejecting the Examining Physicians s Opinion 15 16 Plaintiff contends that in assessing her RFC, the ALJ improperly 17 rejected Dr. Boeck s opinion regarding Plaintiff s left shoulder 18 impairment without providing clear and legitimate reasons. (Pl. s 19 Memorandum at 4). The Court agrees. 20 21 The reports of consultative or examining physicians retained by the 22 Secretary may serve as substantial evidence. 23 F.2d 747, 752 (9th Cir. 1989). 24 physician s 25 convincing reasons. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir 26 1995). 27 contradicted by another doctor, can only be rejected for specific and uncontradicted Furthermore, an Magallanes v. Bowen, 881 An ALJ may only reject a consultative medical examining 28 11 opinion based physician s on clear opinion, even and if 1 legitimate reasons that are supported by substantial evidence in the 2 record. (Id.). 3 4 The Court finds reasons that for the ALJ rejecting did Dr. not provide Boeck s specific opinion and 5 legitimate regarding 6 Plaintiff s left shoulder impairment. 7 determined that Plaintiff cannot reach overhead with the left arm. 8 (AR 289). 9 medical records and objective findings from a physical examination. (AR 10 285-89). However, the ALJ rejected Dr. Boecks uncontradicted opinion, 11 stating that it appeared to be based primarily on Plaintiff s subjective 12 complaints, and because Dr. Boeck had reported that Plaintiff exhibits 13 normal range of motion of the wrists and hands. (AR 28). In his evaluation, Dr. Boeck Dr. Boeck based his opinion on a review of Plaintiff s 14 15 The ALJ s determination that Dr. Boeck s opinion is based primarily 16 on Plaintiff s subjective complaints ignores substantial evidence in the 17 record. 18 results similar to Dr. Boeck s. 19 examination, Dr. Tallakson also reported a limited range of motion of 20 Plaintiff s left shoulder, as well as a positive impingement test and 21 tenderness to palpation. 22 of Plaintiff s left shoulder showed evidence of joint arthrosis and 23 downsloping 24 Plaintiff s RFC, disability examiner A.R. Suarez also reported that 25 Plaintiff is limited in her upper extremities in that she is unable to 26 reach overhead with her left arm. (AR 291). Subsequent examinations of Plaintiff s left shoulder produced of the For example, during a physical (AR 689). acromion. (AR 27 28 12 Moreover, the January 2011 x-ray 695). Finally, in assessing 1 Moreover, the ALJ rejected Dr. Boeck s opinion because Dr. Boeck 2 had reported that [Plaintiff] exhibits normal range of motion of the 3 wrists and hands. 4 ALJ fails to explain the connection between Plaintiff s ability to reach 5 overhead and the range of motion of her wrists. 6 181 F. Supp. 2d 1099, 1106 (9th Cir. 2002) (an ALJ s decision should 7 explain the basis for any material inference the ALJ has drawn so that 8 meaningful judicial review will be facilitated). Accordingly, the ALJ's 9 decision erred by failing to provide specific and legitimate reasons to 10 (AR 28). However, this reason is conclusory. The See Booth v. Barnhart, reject Dr. Boeck's findings. 11 12 13 B. The ALJ Erred At Step Two By Finding That Plaintiff s Mental Impairment Is Not Severe 14 15 Plaintiff next contends that the ALJ erred at step two of the 16 sequential evaluation process in finding that Plaintiff does not have 17 a severe mental impairment. (Pl s. Memorandum at 5). The Court agrees. 18 19 At step two of the five-step sequential inquiry, the ALJ determines 20 whether a plaintiff has a medically severe impairment or combination of 21 impairments. 22 combined effect of all of the plaintiff s impairments on her ability to 23 function, without regard to whether each alone was sufficiently severe. 24 (Id.). 25 to dispose of groundless claims. 26 (9th Cir. 2005). 27 found "not severe" only if the evidence establishes a slight abnormality 28 that has "no more than a minimal effect on an individual's ability to Smolen, 80 F.3d at 1290. The ALJ must consider the Furthermore, step-two is a de minimus screening device, used Webb v. Barnhart, 433 F.3d 683, 687 An impairment or combination of impairments can be 13 1 work." Smolen, 80 F.3d at 1290. An ALJ may find that a plaintiff lacks 2 a medically severe impairment or combination of impairments only when 3 the ALJ s conclusion is clearly established by medical evidence. (Id.). 4 5 Here, the ALJ found that Plaintiff lacks a severe mental impairment 6 or combination of impairments despite objective medical evidence 7 demonstrating limitations in her ability to understand and remember 8 complex instructions, make judgments on complex work-related decision, 9 and interact appropriately with the public, co-workers and supervisors. 10 (AR 306, 308). Indeed, after performing a psychological examination, 11 Dr. Colonna reported that Plaintiff s overall cognitive ability falls 12 within the low average range. (AR 304). Dr. Colonna also reported that 13 Plaintiff s 14 depression and that Plaintiff endorses items of severe depression. 15 (AR 303). 16 (AR 17 psychologist, 18 Plaintiff s claim of a severe mental impairment at step two. See Edlund 19 v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001). 20 qualify as more than a "slight abnormality." test results indicate that she suffers from severe Accordingly, Dr. Colonna diagnosed Plaintiff with dysthymia. 304). Given the the ALJ uncontroverted lacked diagnosis substantial of evidence the for examining dismissing These findings 21 22 Moreover, the ALJ erred in failing to meet the standard of clear 23 and convincing reasons required to reject an uncontradicted opinion of 24 an examining psychologist. 25 gave great weight to the medical expert who testified that Plaintiff 26 does not have a severe medically determinable mental impairment. 27 25). 28 that the record lacked sufficient information to form an opinion as to Edlund, 253 F.3d at 1158-59. Here, the ALJ (AR However, the record indicates that the medical expert testified 14 1 Plaintiff s psychological problems. (AR 68). As such, the ALJ 2 improperly rejected the psychological examiner s opinion regarding 3 Plaintiff s mental impairments and erred by characterizing Plaintiff's 4 mental impairment at step-two as non-severe. 5 6 7 C. The ALJ Failed To Provide Clear and Convincing Reasons For Rejecting Plaintiff s Credibility 8 9 Plaintiff next contends that the ALJ failed to provide clear and 10 convincing reasons for rejecting Plaintiff s testimony regarding her 11 subjective symptoms. (Pl s. Memorandum at 7). Specifically, Plaintiff 12 claims that the ALJ improperly discredited Plaintiff s testimony due to 13 inconsistencies between her testimony and the evidence in the record. 14 The Court agrees. 15 16 To determine whether a claimant s testimony regarding subjective 17 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 18 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2006). 19 the plaintiff must produce objective medical evidence of an underlying 20 impairment or impairments that could reasonably be expected to produce 21 some degree of symptom. 22 plaintiff meets this threshold, and there is no evidence of malingering, 23 the ALJ can reject the plaintiff s testimony about the severity of her 24 symptoms only by offering specific, clear and convincing reasons for 25 doing so. Smolen, 80 F.3d at 1281-82. First, Second, if the (Id. at 1281). 26 27 28 The rejecting ALJ failed Plaintiff s to provide clear testimony. and convincing Initially, 15 the ALJ reasons for discredited 1 Plaintiff s testimony because of Plaintiff s ability to drive a car and 2 go grocery shopping. 3 found inconsistencies between Plaintiff s assertion that she is losing 4 her eyesight and an evaluation which found that Plaintiff exhibits 5 twenty-twenty vision while wearing glasses. 6 discredited Plaintiff s testimony due to Plaintiff s minimal record of 7 paid work activities. (AR 27). In addition, the ALJ stated that she (AR 28). Finally, the ALJ (Id.). 8 9 As noted above, the ALJ rejected Plaintiff s subjective testimony 10 because Plaintiff can drive a car and goes grocery shopping. (AR 27). 11 However, the mere fact that a plaintiff has carried on certain daily 12 activities, such as grocery shopping, driving a car, or limited walking 13 for exercise, does not in any way detract from her credibility as to her 14 overall disability. 15 2001). 16 setting and, without more evidence of contradictory daily activities, 17 are not sufficient to undermine Plaintiff's testimony. 18 [a] patient may do these activities despite pain for therapeutic 19 reasons, but that does not mean she could concentrate on work despite 20 the pain or could engage in similar activity for a longer period given 21 the pain involved. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. These activities are not necessarily transferable to the work Furthermore, (Id.). 22 23 The ALJ also discredited Plaintiff s testimony because the ALJ 24 found inconsistent Plaintiff s assertion that she is losing her vision 25 and an evaluation which shows that Plaintiff has 20/20 vision while 26 wearing glasses. 27 the evaluation also shows that Plaintiff s visual acuity without glasses 28 is 20/200, a rating which meets the definition of legal blindness. (AR 299). However, the ALJ failed to consider that 16 See 1 20 C.F.R. § 404.1581. Moreover, on April 11, 2011, Dr. Tony Sadighpour, 2 optometrist, diagnosed presbyopia hyperopic astigmatism, as well as 3 glaucoma suspect per large optic nerves. (AR 745). 4 5 Lastly, the ALJ rejected Plaintiff s testimony due to her minimal 6 record of paid activities. Although an ALJ may consider a plaintiff s 7 work history in making a credibility determination, see Thomas v. 8 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002), here, Plaintiff s poor work 9 history alone is insufficient for an adverse credibility ruling, given 10 that the other stated reasons were either weak or not supported by the 11 evidence. 12 13 D. Remand For An Award Of Benefits 14 15 While this Court may remand for further proceedings, it may also 16 remand for an award of benefits if the record is fully developed and 17 it is clear from the record that the ALJ would be required to award 18 benefits. 19 In 20 demonstrate that she was disabled prior to her last insured date. 21 Armstrong v. Comm r of Social Sec. Admin., 160 F.3d 587, 589 (9th Cir. 22 1998). Further, Plaintiff will be considered disabled when she became 23 unable to engage in any substantial gainful activity by reason of any 24 medically determinable physical or mental impairment which can be 25 expected to last for a continuous period of not less than twelve 26 months. 27 disability onset include the individual s allegation, the work history, 28 and the medical evidence. order Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). for Plaintiff (Id.). to obtain disability benefits, she must Factors relevant to the determination of the Social Security Ruling 83-20 (1983). 17 1 The Court finds that an award of benefits is appropriate here. The 2 ALJ s determination that Plaintiff has an RFC to perform a full range 3 of 4 Plaintiff s testimony and her examining physician s opinions. 5 discussed above, Plaintiff s examining physicians opinions as well as 6 Plaintiff s testimony should be fully credited. 7 the evidence would inevitably lead to a finding that Plaintiff is 8 disabled. 9 remands to the agency for a determination of the proper award of 10 sedentary work is incorrect. The ALJ erroneously 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 As A proper evaluation of Accordingly, Plaintiff must be found disabled. benefits. assessed The Court 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING this 6 matter for payment of benefits, consistent with this decision. 7 FURTHER ORDERED that the Clerk of the Court serve copies of this 8 order and the Judgment on counsel for both parties. 9 10 DATED: March 15, 2013 11 12 13 14 15 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT 19 INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE 20 SERVICE SUCH AS WESTLAW OR LEXIS. 21 22 23 24 25 26 27 28 19 IT IS

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