Kathryn Hamilton v. Michael J. Astrue, No. 5:2008cv01843 - Document 20 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Kathryn Hamilton v. Michael J. Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 KATHRYN HAMILTON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner ) of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 08-1843-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on December 24, 2008, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for supplemental security income (“SSI”). 21 February 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). 24 which: 25 and awarding benefits or, in the alternative, remanding the matter for 26 further 27 affirming the Commissioner’s decision. The Court has taken the parties’ 28 Joint Stipulation under submission without oral argument. 26, 2009, the parties consented to proceed before On the The parties filed a Joint Stipulation on August 10, 2009, in plaintiff seeks an order reversing the Commissioner’s decision administrative proceedings; and defendant seeks an order Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On September 4, 2002, filed an application for SSI, in which she 4 alleged to have been disabled since September 1, 1991, due to anxiety, 5 memory loss, partial blindness, and lower back, pelvic, and left 6 shoulder pain.1 (A.R. 66-74.) Plaintiff’s past relevant work experience 7 includes the jobs of clothes tagger and prep cook. 8 12.) (A.R. 243, 290, 311- 9 Plaintiff’s 10 application was denied initially and upon 11 reconsideration (A.R. 47-58), and she requested a hearing (A.R. 59). On 12 March 31, 2004, plaintiff, who was represented by counsel, testified at 13 a hearing before Administrative Law Judge F. Keith Varni (“ALJ Varni”). 14 (A.R. 15 application. 16 and the Appeals Council denied plaintiff’s request for review. (A.R. 3- 17 8.) 18 No. EDCV 04-1118-MAN). 19 reversed the decision and remanded the case for further proceedings. 20 (A.R. 268-80.) 40-46.) On April (A.R. 10-20.) 30, 2004, ALJ Varni denied plaintiff’s Plaintiff appealed ALJ Varni’s decision, On September 13, 2004, plaintiff sought review in this Court (Case (A.R. 269.) On March 27, 2006, the Court On April 24, 2006, the Appeals Council vacated ALJ 21 22 23 24 1 Plaintiff had filed earlier applications in 1983, and 1989, which were denied, and she did not request a hearing and/or seek review of the denial of those applications. (Administrative Record (“A.R.”) 13.) Plaintiff also filed an application on October 31, 2000, which an Administrative Law Judge denied on January 24, 2002; the Appeals Council denied review on April 22, 2002. (Id.) 25 26 27 28 While this Court’s review of the denial of her instant SSI claim was pending, plaintiff filed another SSI application on September 21, 2005; the Appeals Council consolidated that claim with plaintiff’s claim based on her September 4, 2002 application. This lawsuit stems from the Commissioner’s final decision on the consolidated claims. (A.R. 237, 266.) 2 1 Varni’s decision and remanded the case to an Administrative Law Judge. 2 (A.R. 266-67.) 3 On July 3, 2008, Administrative Law Judge Phillip E. Moulaison 4 5 (“ALJ”) held a hearing, at which plaintiff and others testified. (A.R. 6 285-318.) 7 partially favorable in that the ALJ found plaintiff to be disabled and 8 entitled to receive SSI as of December 27, 2007, but found she was not 9 disabled prior to that date. On August 22, 2007, the ALJ issued a decision that was (A.R. 237-44.) 10 11 SUMMARY OF THE COMMISSIONER’S DECISION 12 13 The ALJ found that plaintiff has not engaged in substantial gainful 14 activity since September 1, 1991, the alleged onset date. 15 The 16 impairments consisting of: 17 pelvic, 18 neuropathy; hypertension; history of hepatitis; history of right eye 19 injury; and obesity. 20 report 21 consultative psychiatric evaluation of plaintiff, the ALJ concluded that 22 plaintiff’s mood disorder is non-severe. 23 determined that plaintiff’s impairments, singly or in combination, do 24 not meet or equal any of the impairments listed in 20 C.F.R. Part 404, 25 Subpart P, Appendix 1. ALJ determined and of left Dr. that plaintiff pain; (A.R. 239.) M. a combination of severe a history of chronic lower back, right hip, shoulder Linda has (A.R. 239.) diabetes mellitus; peripheral Relying on the December 10, 2002 Smith, a (A.R. 240.) 26 27 28 3 psychiatrist (Id.) who performed a The ALJ further 1 The ALJ determined that, as of December 27, 2007,2 plaintiff’s 2 residual functional capacity (“RFC”) was for unskilled sedentary work as 3 defined in 20 C.F.R. § 416.967(a), because she needed a cane to walk. 4 (A.R. 240.) 5 was unable to perform her past relevant work as a clothes tagger or a 6 prep cook (A.R. 243), and based on her age, education, work experience, 7 and RFC, there was not a significant number of jobs in the national 8 economy that she could perform (A.R. 244). 9 “disabled,” as of December 27, 2007, was warranted. The ALJ concluded that, as of December 27, 2007, plaintiff Accordingly, a finding of (Id.) 10 11 With respect to the pre-December 27, 2007 time frame, the ALJ 12 concluded that plaintiff had the RFC to perform unskilled light work 13 with certain limitations. 14 that plaintiff was able to engage in the following activities with the 15 indicated limitations: 16 stand and/or walk for six hours in an eight-hour workday; lift and/or 17 carry 18 occasionally; 19 occasionally; reach overhead with the left arm occasionally; and engage 20 in unlimited handling, fingering, and feeling. 21 found that, although plaintiff’s color vision is unlimited, her right 22 eye vision was limited in near acuity, far acuity, depth perception, 23 accommodation, and field of vision. 24 plaintiff had no communicative or environmental limitations. and push Specifically, the ALJ concluded sit for six hours in an eight-hour workday; and/or climb, (A.R. 242.) pull 10 balance, pounds stoop, frequently kneel, (Id.) and crouch, 20 and (A.R. 240.) pounds crawl The ALJ He further found that (Id.) 25 The ALJ found that, prior to December 27, 2007, there was a 26 27 2 28 On December 27, 2007, plaintiff’s age category changed from younger individual to individual approaching advanced age. (A.R. 243.) 4 1 significant number of jobs in the national economy that plaintiff could 2 have performed.3 3 Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the 4 “Grids”), as the basis for concluding that, given plaintiff’s age, 5 education, work experience, and RFC for light work prior to December 27, 6 2007, a finding of “not disabled” was warranted for the period prior to 7 December 27, 2007. (A.R. 243-44.) The ALJ relied on the Medical- (A.R. 244.) 8 9 STANDARD OF REVIEW 10 11 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 12 decision to determine whether it is free from legal error and supported 13 by substantial evidence in the record as a whole. 14 F.3d 625, 630 (9th Cir. 2007). 15 evidence as a reasonable mind might accept as adequate to support a 16 conclusion.’” 17 a mere scintilla but not necessarily a preponderance.” 18 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 19 record can constitute substantial evidence, only those ‘reasonably drawn 20 from the record’ will suffice.” 21 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 22 23 24 25 26 27 28 3 It is unclear whether the ALJ was referring to plaintiff’s past relevant work or different jobs or both. At Step Four, the ALJ made the express finding that plaintiff “is unable to perform any past relevant work”; however, his attendant Step Four discussion focused only on the relationship between the light RFC required for plaintiff’s past relevant work and her sedentary RFC post-December 27, 2007. (A.R. 243.) In his Step Five finding, the ALJ failed to identify what jobs in the national economy he had determined plaintiff could perform prior to December 27, 2007. (A.R. 243-44.) 5 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, “weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner’s] conclusion.” 5 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities.” 9 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d “Where the evidence as a whole can 10 support either a grant or a denial, [a federal court] may not substitute 11 [its] judgment for the ALJ’s.” 12 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation 13 omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 14 15 The Court will uphold the Commissioner’s decision when the evidence 16 is susceptible to more than one rational interpretation. Tommasetti v. 17 Astrue, 553 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 18 676, 679 (9th Cir. 2005); see also Batson v. Comm’r of Soc. Sec. Admin., 19 359 F.3d 1190, 1193 (9th Cir. 2004)(“if evidence exists to support more 20 than one rational interpretation, we must defer to the Commissioner’s 21 decision”). 22 the ALJ in his decision “and may not affirm the ALJ on a ground upon 23 which he did not rely.” 24 F.3d at 874. 25 it is based on harmless error, which exists only when it is “clear from 26 the record that an ALJ’s error was ‘inconsequential to the ultimate 27 nondisability determination.’” 28 880, 885 (9th Cir. 2006)(quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 However, the Court may review only the reasons stated by Orn, 495 F.3d at 630; see also Connett, 340 The Court will not reverse the Commissioner’s decision if Robbins v. Soc. Sec. Admin., 466 F.3d 6 1 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d 2 at 679. 3 4 DISCUSSION 5 6 Plaintiff alleges the following three issues: (1) whether the ALJ 7 properly considered the vocational expert’s testimony; (2) whether the 8 ALJ 9 determine whether her impairments meet or medically equal an impairment 10 set forth in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. A, 11 App. 1 (the “Listings”); and (3) whether the ALJ properly considered 12 plaintiff’s obesity. properly analyzed plaintiff’s combination of impairments to (Joint Stipulation (“Joint Stip.”) at 2-3.) 13 14 I. No Step Three Error Warranting Reversal Has Been Shown. 15 16 A. The Listings 17 18 At Step Three of the five-part sequential evaluation for 19 determining whether a claimant is disabled, the Commissioner must 20 determine whether a claimant’s impairment or impairments meet or equal 21 one of the specific impairments set forth in the Listings. 22 416.920(a)(4)(iii). The physical and mental conditions contained in the 23 Listings are considered so severe that “they are irrebuttably presumed 24 disabling, without any specific finding as to the claimant’s ability to 25 perform his past relevant work or any other jobs.” 26 F.3d 821, 828 (9th Cir. 1995). 27 as a presumption of disability that makes further inquiry unnecessary.” 28 Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 865, 892 (1990); see 20 C.F.R. § Lester v. Chater, 81 The Listings were “designed to operate 7 1 also Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 2 shows that her impairments meet or equal a Listing, she will be found 3 presumptively disabled. If a claimant 20 C.F.R. §§ 416.925-416.926. 4 5 For an impairment or combination of impairments to meet a Listing, 6 all of the criteria of that Listing must be satisfied for the requisite 7 durational period. 8 impairment “must meet all of the specified medical criteria” in the 9 Listing)(emphasis in original); see also 20 C.F.R. §§ 416.909 and 10 416.925(c)(3); Social Security Ruling (“SSR”) 83-19 (“[a]n impairment 11 ‘meets’ a listed condition in the Listing of Impairments only when it 12 manifests the specific findings described in the set of medical criteria 13 for that listed impairment”). Zebley, 493 U.S. at 530, 110 S. Ct. at 891 (the 14 15 For an impairment or combination of impairments to equal a Listing, 16 the claimant “must present medical findings equal in severity to all the 17 criteria for the one most similar listed impairment.” 18 at 531. 110 S. Ct. at 891 (emphasis in original); see also 20 C.F.R. § 19 416.926(a)-(b); SSR 83-19 (an impairment is “equivalent” to a Listing 20 only if a claimant’s symptoms, signs, and laboratory findings are “at 21 least equivalent in severity” to the criteria for the listed impairment 22 most 23 assessment, 24 combination and must not be fragmentized in evaluating their effects.’” 25 Lester, 81 F.3d at 829 (citation omitted). 26 equivalence must rest on objective medical evidence. 27 F.3d at 614 (“[a] finding of equivalence must be based on medical 28 evidence only”); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) like the the claimant’s impairment). claimant’s impairments 8 In making “‘must be Zebley, 493 U.S. an equivalence considered in A determination of medical See Lewis, 236 1 (“[a] generalized assertion of functional problems is not enough to 2 establish disability at step three,” because “‘[m]edical equivalence 3 must be based on medical findings’”; citation omitted); 20 C.F.R. § 4 416.929(d)(3) 5 laboratory findings are medically equal to the symptoms, signs, and 6 laboratory findings of a listed impairment, we will look to see whether 7 your symptoms, signs, and laboratory findings are at least equal in 8 severity to the listed criteria. However, we will not substitute your 9 allegations of pain or other symptoms for a missing or deficient sign or 10 laboratory finding to raise the severity of your impairment(s) to that 11 of a listed impairment.”). (“In considering whether your symptoms, signs, and 12 13 At Step Three, the claimant bears the burden of proving that her 14 impairment or combination of impairments meets or equals the criteria of 15 a Listing. 16 required to discuss the combined effects of a claimant’s impairments or 17 compare them to any listing in an equivalency determination, unless the 18 claimant presents evidence in an effort to establish equivalence.” 19 Burch, 400 F.3d at 683; see also Lewis, 236 F.3d at 514 (finding that 20 the ALJ’s failure to discuss equivalence did not warrant reversal, 21 because the claimant had not offered any theory, plausible or otherwise, 22 that might show how the combined effect of his impairments equaled a 23 Listing). Tackett, 180 F.3d at 1098-99. In addition, “[a]n ALJ is not 24 25 “An ALJ must evaluate the relevant evidence before concluding that 26 a claimant’s impairments do not meet or equal a listed impairment.” 27 Lewis, 236 F.3d at 512. 28 insufficient to support a conclusion that a claimant’s impairment” does A “boilerplate finding [at Step Three] is 9 1 not meet or equal a listing. Id. In Marcia v. Sullivan, 900 F.2d 172, 2 176 (9th Cir. 1990), the Ninth Circuit held that: 3 and evaluate the evidence that supports his Step Three finding; and an 4 ALJ’s unexplicated finding at Step Three -– to wit, “[t]he claimant has 5 failed to provide evidence of medically determinable impairments that 6 meet or equal the Listings” –- was reversible error, because the ALJ 7 failed to explain adequately his evaluation of why certain medical 8 evidence of record and/or the combined effects of the claimant’s 9 impairments did not equal the Listing in question. an ALJ must explain Id. However, in 10 Lewis, the Ninth Circuit clarified that the lack of a formal analysis 11 and findings at the Step Three level will not constitute reversible 12 error when: 13 evidence supports a conclusory Step Three finding; and with respect to 14 equivalency, the claimant fails to proffer a theory or evidence showing 15 that his combined impairments equal a Listing. the ALJ’s subsequent discussion of the relevant medical 236 F.3d at 513-14. 16 17 B. The ALJ’s Step Three Finding 18 19 As plaintiff correctly notes, the ALJ, in his decision, did not 20 “provide an analytical discussion at the 21 evaluation process that addressed the combined effect of Plaintiff’s 22 multiple impairments.” 23 that no impairment or combination of impairments met or equaled a 24 Listing, because “[t]he objective medical evidence does not support a 25 conclusion that the claimant has had limitations of listing level 26 severity.” (Joint Stip. at 8.) step three sequential The ALJ simply concluded (A.R. 240.) 27 28 Plaintiff argues that the ALJ’s Step Three finding was erroneous, 10 1 because her combined impairments meet or equal three Listings -- 2 specifically, No. 1.02A, 2.02, and 14.09A. 3 failed to analyze properly the combined effect of her “osteoarthritis, 4 chronic left hip and leg pain, and visual limitation” with respect to 5 these three Listings.4 She contends that the ALJ (Joint Stip. at 9-13.) 6 7 1. Listing 1.02A 8 9 Plaintiff first argues that the medical evidence establishes that 10 she met or equaled Listing 1.02A, which governs the major dysfunction of 11 a joint due to any cause. 12 gross anatomical deformity and chronic joint pain and stiffness, with 13 signs of limitation of motion or other abnormal motion of the affected 14 joint, and medical imaging showing narrowing, destruction, or ankylosis 15 of the affected joint -- plus a further finding of the involvement of a 16 major peripheral weight-bearing joint, resulting in the inability to 17 ambulate effectively, as defined in 1.00B2b. The Listing requires three findings -- a 18 Plaintiff 19 argues that her treating records are replete with 20 evidence that she has complained, on an ongoing basis, of chronic 21 shoulder, back, hip, knee, and lower extremity pain. Plaintiff relies 22 4 23 24 25 26 27 28 Relying on a physician’s “impression” that plaintiff may have fibromyalgia (A.R. 183), plaintiff asserts that she has received a “diagnosis” of fibromyalgia as a “medically determinable impairment,” which the ALJ should have considered at Step Three as part of her “collective” impairments. (Joint Stip. at 13.) In the proceedings before the Commissioner, plaintiff did not claim to suffer from fibromyalgia. She did not include fibromyalgia among the ailments she reported to the numerous consulting physicians who examined her. Plaintiff has not cited any evidence indicating that any clinical testing was performed and elicited positive findings that she has fibromyalgia. Accordingly, plaintiff’s fibromyalgia argument is not persuasive. 11 1 on 2002 and 2003 physician notes indicating that, based on plaintiff’s 2 complaints of hip and leg pain, she might have osteoarthritis. However, 3 medical imaging performed in 2001, 2004, and 2005 was negative for 4 osteoarthritis or bone or joint abnormalities in her knees or hips. 5 (A.R. 134-35, 379, 384-86.) A 2004 diagnostic image of plaintiff’s left 6 shoulder did show moderate degenerative changes in her left shoulder 7 (glenohumeral joint). 8 physician at Arrowhead Regional Medical Center (“ARMC”) noted that 9 plaintiff has left shoulder weakness and pain, with a decreased range of 10 motion. (A.R. 387.) On July 14, 2008, a treating (A.R. 468-69.) 11 12 Thus, there was some medical evidence of record supportive of the 13 first three findings required for Listing 1.02A based on plaintiff’s 14 left 15 Plaintiff argues that the further required finding of Listing 1.02A -- 16 involvement of a weight-bearing joint resulting in an inability to 17 ambulate effectively as defined in 1.00B2B -- is met by evidence that: 18 in February 2001, a nurse observed that plaintiff walks slowly using a 19 cane and with a slight limp (A.R. 137); in February 2005, an ARMC 20 physician noted that plaintiff complained of a burning sensation on the 21 bottom 22 effectively for the past two weeks as she previously had been, and the 23 physician further noted, without explanation, “diminished strength” in 24 lower extremities and “unable to ambulate without cane”5 (A.R. 375); and 25 in December 2007, a consultative orthopedist (Dr. Conaty) observed that shoulder of her impairment, feet, but numbness, not and as an to her lower inability to extremities. ambulate as 26 5 27 28 It is unclear if this latter observation was a finding by the physician or was based on plaintiff’s self-report. There is no evidence of any clinical testing and findings attendant to this observation. (A.R. 375.) 12 1 plaintiff’s “[w]eight-bearing gait, walking on toes, and walking on 2 heels are done with difficulty” (A.R. 439). 3 4 Dr. Conaty, however, also found that there was no evidence of any 5 instability in plaintiff’s joints, she had a normal range of motion and 6 muscle strength in her lower extremities, she did not use an ambulatory 7 device to walk, and she had the capacity to stand and walk for six hours 8 in an eight-hour day. 9 (Dr. Clements), who examined plaintiff in April 2006, also found that 10 there is no evidence of instability in plaintiff’s knees, her range of 11 motion in her lower extremities was normal, and she could stand and walk 12 for six hours in an eight-hour day. 13 that plaintiff had difficulty standing on her heels and toes but stated 14 that “some of the difficulties with balance” are related to plaintiff’s 15 visual deficit in her right eye. 16 consultative physician (Dr. Lin), who examined plaintiff in November 17 2007, noted that plaintiff: 18 regular basis; did not need an assistive device to ambulate across the 19 room and had a gait within normal limits; had slight difficulty standing 20 on toes and heels and performing a tandem gait; and could stand or walk 21 for six hours in an eight-hour day. 22 plaintiff told an examining physician (Dr. Klein) that she does not use 23 a cane, and he found no instability in her knees and that she had a 24 normal range of motion in her hips, knees, and ankles and a normal gait 25 with unaffected heel to toe walking. (A.R. 438-40.) Another consultative physician (A.R. 432-34.) (A.R. 433.) Dr. Clements noted Similarly, another denied using an assistive device on a (A.R. 455.) In December 2002, (A.R. 121, 124-25.) 26 27 Section 1.00B2B of the Listings states that an “inability to 28 ambulate effectively” means an “extreme limitation of the ability to 13 1 walk; i.e., an impairment(s) that interferes very seriously with the 2 individual’s ability to independently initiate, sustain, or complete 3 activities.” 4 insufficient lower extremity functioning . . . to permit independent 5 ambulation without the use of a hand-held assistive device(s) that 6 limits 7 1.00B2B(1) (emphasis added). 8 alia, an “inability to walk without the use of a walker, two crutches or 9 two canes” or an “inability to use standard public transportation” or an 10 “inability to carry out routine ambulatory activities, such as shopping” 11 or an “inability to climb a few steps at a reasonable pace with the use 12 of a single hand rail.” the Ineffective ambulation is “defined generally as having functioning of both upper extremities.” See Section This provision cites as “examples,” inter See Section 1.00B2b(2). 13 14 Plaintiff did not proffer in the proceedings before the 15 Commissioner (and does not do so now) objective medical evidence 16 indicating, 17 establish an inability to ambulate effectively that is equal in severity 18 to the requirements of 1.00B2B and 1.02A of the Listings. 19 evidence of record does not contain any such finding. Rather, plaintiff 20 relies only on her self-reports of symptoms, conflicting evidence 21 regarding her possible use of a single cane, and observations by medical 22 personnel that plaintiff has some difficulty with balance and weight- 23 bearing gait. 24 Three. or tending to indicate, that any of her impairments The medical Her proffered evidence does not meet her burden at Step 25 26 Plaintiff’s self-reports of symptoms and functional limitations 27 based on hip and joint pain cannot suffice to raise the severity of her 28 related impairment to that of Listing 1.02A. 20 C.F.R. § 416.929(d)(3); 14 1 see also Lewis, 236 F.3d at 614; Tackett, 180 F.3d at 1100. 2 even crediting the conflicting evidence regarding her intermittent use 3 of a cane,6 her use of a single cane does not limit the functioning of 4 both of her upper extremities, and there is no evidence that plaintiff 5 requires the use of two canes. 6 also does not support plaintiff’s claim of Step Three error. 7 testified that: 8 can “barely walk on them at times”; she can walk up a flight of stairs 9 if her feet are not burning, but her feet are “always burning”; and she Moreover, The testimony elicited at the hearing Plaintiff when her feet “burn” and “swell up” periodically, she 10 can walk half a block without having to rest. 11 ALJ, however, rendered an adverse credibility finding with respect to 12 plaintiff’s 13 limiting effects of her symptoms. 14 challenge that credibility finding here.7 15 objective medical 16 “burning” sensation 17 conceded that she can walk up a flight of stairs when her feet are not 18 “burning” 19 plaintiff’s claimed impairments prevent her from ambulating effectively 20 within 21 daughter testified that plaintiff takes the bus by herself to go to 22 doctor’s appointments several times a month and goes shopping at the 23 grocery store and mall with her daughter, although plaintiff will “walk the statements -- a concerning evidence meaning of her which Section intensity, (A.R. 242.) supports prevents concession the (A.R. 290, 294.) walking, militates 1.00B2b(2). and Plaintiff does not But even if she had, no plaintiff’s from persistence, The contention and against that moreover, finding Moreover, a she that plaintiff’s 24 25 6 As noted above, plaintiff told two consultative examiners that she does not use a cane. 26 7 27 28 The Court notes that, on July 10, 2007, nerve conduction studies were conducted on plaintiff’s lower extremities. The finding was normal and “[n]o evidence of peripheral neuropathy or entrapment neuropathy [wa]s noted.” (A.R. 515.) 15 1 a little bit” at the mall and then sit on a bench, rather than walking 2 “the whole mall.” 3 transportation without assistance and engage in shopping indicates that 4 plaintiff does not have the requisite extreme limitation on ambulation 5 contemplated by Section 1.00B2B(2), and thus, by Listing 1.02A. (A.R. 306, 309.) Plaintiff’s ability to use public 6 7 While there is medical evidence indicating that plaintiff has some 8 difficulty with her weight-bearing gait and her ability to stand on her 9 heels and toes, and possibly some diminished strength in her lower 10 extremities, there is no evidence that these symptoms have an extreme 11 limitation on plaintiff’s ability to walk and that she is unable to 12 ambulate effectively, within the meaning of the relevant portions of the 13 Listings. 14 finding that she meets or equals Listing 1.02A. Hence, plaintiff has not shown that there is any basis for 15 16 2. Listing 14.09A1 17 18 Plaintiff asserts that she also meets or equals Listing 14.09A1 due 19 to asserted “persistent inflammation” in her left shoulder, left hip, 20 and knees. 21 arthritis,” as the condition is defined in Section 14.00D6. As distinct 22 from osteoarthritis, a mechanical disorder governed by Listing 1.02A, 23 inflammatory arthritis includes a “vast array of disorders” that are 24 immunological in nature. 25 of 26 serologic findings described in the most recent edition of the Primer on 27 the Rheumatic Diseases published by the Arthritis Foundation.” (Joint Stip. at 12.) inflammatory Listing 14.09A1 governs “inflammatory Section 14.00D6(d) states that “the diagnosis arthritis is based 28 16 on the clinical features and 1 Listing 14.09A1 requires findings of an inflammatory arthritis 2 disorder within the meaning of Section 14.00D6 (i.e., the existence of 3 an immune disorder) with persistent inflammation or persistent deformity 4 of 5 inability to ambulate effectively within the meaning of Section 1.00B2b 6 as described above. 7 Listing 14,09A1, “inability to ambulate effectively” has the same 8 meaning as that proscribed by Section 1.00B2B). a major peripheral weight-bearing joint, which results in an See Section 14.00C6 (stating that, for purposes of 9 10 Although the record contains evidence of osteoarthritis in 11 plaintiff’s left shoulder, plaintiff cites no evidence of record that 12 she has been diagnosed with inflammatory arthritis in either shoulder or 13 her hips or knees or that any physician has suspected that she has such 14 an immunological disease in any of these body parts. 15 medical evidence of record establishing that plaintiff, in fact, has 16 “persistent inflammation” in these body parts –- the first requisite for 17 application of Listing 14.09A1. 18 above, there is no basis for finding that the “inability to ambulate 19 effectively” requirement for this Listing could be satisfied. There is no Moreover, for the reasons set forth 20 21 3. Listing 2.02 22 23 Plaintiff also contends that she meets or equals Listing 2.02. 24 (Joint Stip. at 12-13.) Listing 2.02 relates to loss of visual acuity, 25 and applies when a claimant’s remaining vision in the better eye after 26 best correction is 20/200 or less. 27 28 As plaintiff concedes, “documentation is scant in regards to 17 1 Plaintiff’s best corrected vision in the better eye.” (Joint Stip. at 2 13.) 3 assessed plaintiff as having a visual acuity of 20/80; there is no 4 indication whether that assessment was for corrected or uncorrected 5 vision. 6 April 17, 2006, and found that, “[w]ithout glasses, both eyes showed 7 20/50, right eye showed 20/70 and the left eye showed 20/70.” (A.R. 8 431.) 9 performed a visual acuity test that showed a visual acuity of 20/100 in 10 both eyes without glasses, with 10/100 in the right eye and 10/70 in the 11 left eye. 12 his office, performed a visual acuity test, which showed a visual acuity 13 of 20/100 in both eyes without glasses, with <20/200 in the right eye 14 and 20/70 in the left eye.8 A November 14, 2005 note by Dr. Blanchard indicates that he (A.R. 337.) Dr. Clements performed a visual acuity test on On November 30, 2007, Dr. Lin, or someone at his office, (A.R. 457.) On December 4, 2007, Dr. Conaty, or someone at (A.R. 442.) 15 16 Besides her own self-report of “some blurred vision” (A.R. 190), 17 plaintiff points to no evidence of record bearing on her assertedly 18 Listing-level visual impairment other than the above-described test 19 results. These results do not establish the finding required by Listing 20 2.02. 21 plaintiff meets or equals Listing 2.02. The record, thus, does not provide any basis for finding that 22 23 24 25 26 27 28 8 Plaintiff notes the reference in the test results to a visual acuity of <20/200 with pinhole correction, but fails to acknowledge that the test results stated that plaintiff claimed “can’t see nothing” through the pin hole and her effort was “poor.” (A.R. 442.) In any event, pin hole testing is not an acceptable method of determining bestcorrected visual acuity for purposes of Listing 2.02. See Section 2.00A5b. 18 4. 1 No Reversible Error Exists. 2 3 For the reasons set forth above, the evidence of record does not 4 support a finding that the plaintiff’s physical impairments, whether on 5 their own or in combination, meet or equal Listings 1.02A, 2.02, and/or 6 14.09A. 7 elsewhere in his decision, the ALJ discussed the objective medical 8 evidence bearing on plaintiff’s claimed physical impairments. 9 241-43.) Even though the ALJ’s Step Three Finding was conclusory, (A.R. Given plaintiff’s failure to meet her burden of presenting 10 evidence establishing that her impairments or combination of impairments 11 meets or equals the criteria of a Listing (Tackett, 180 F.3d at 1098- 12 99), the Court concludes that the ALJ’s discussion of the medical 13 evidence in his decision sufficed to adequately support his Step Three 14 finding that the objective medical evidence did not establish that 15 plaintiff’s impairments meet or equal the severity of any Listing. 16 Lewis, 236 F.3d at 513; see also Burch, 400 F.3d at 683. 17 as in Lewis, 236 F.3d at 514, given plaintiff’s failure to set forth a 18 plausible theory of how the evidence shows that the combination of her 19 impairments equals any Listing, the ALJ’s failure to explicitly analyze 20 the equivalence issue does not warrant reversal. See In addition, 21 22 23 II. The ALJ’s Consideration Of Plaintiff’s Obesity Does Not Warrant Reversal. 24 25 The ALJ found, at Step Two, that plaintiff has a severe impairment 26 27 28 19 1 of obesity.9 (A.R. 239.) At the commencement of his Step Four analysis, 2 the ALJ noted SSR 02-1p and stated that plaintiff’s obesity “has been 3 taken into consideration in arriving at” the RFC assessed. 4 As 5 plaintiff’s obesity is a severe impairment, the ALJ’s decision does not 6 contain 7 Plaintiff complains that the ALJ failed to determine the effect of her 8 obesity, in combination with her other impairments, at Step Three and 9 that he failed to adequately assess the effect of her obesity at the 10 plaintiff any observes, further other mention than or the unexplained analysis remaining steps of the sequential evaluation. of (A.R. 240.) finding plaintiff’s that obesity. (Joint Stip. at 18-19.) 11 12 Obesity was removed as a listed impairment from the Listings in 13 1999. 14 obesity, the Commissioner is required to determine the effects of the 15 claimant’s obesity at various points in the sequential evaluation. 16 02-01p. Nonetheless, as a general rule, when there is evidence of SSR 17 18 For example, in Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003), 19 the claimant was illiterate and pro se, and the evidence established 20 that she had the impairments of diabetes and hypertension. In addition, 21 22 23 24 25 26 27 28 9 The record shows that plaintiff is 5’5” and has weighed, at various times, 168, 174, 177, or 180 pounds. (See A.R. 289, 301, 431, 438, 452.) The Court notes that, at the hearing, plaintiff testified that she weighs 174 pounds, and this has been her normal weight, without much variance, for the past six years. (A.R. 289, 301.) A weight of 174 for a person of her height constitutes a Body Mass Index (BMI) of 29.0, which falls within the Overweight, rather than Obese, category. See, e.g., BMI calculator and information provided by the National Institute of Health at www.nhlbisupport.com/bmi/. Even at 180 pounds, plaintiff’s BMI would be 30.00, the very bottom range of Level I of the Obese category. See SSR 02-01p. 20 1 although she had not alleged that she was disabled based on obesity, 2 there was evidence that she was 4’9” (if not shorter) and her weight 3 fluctuated between 205 and 213 pounds. 4 held that the administrative law judge erred in failing to consider the 5 effect of claimant’s obesity on her diabetes and hypertension for three 6 reasons. 7 raised as a disability “implicitly in [the claimant’s] report of 8 symptoms.” 9 claimant’s level of obesity was significant, was close to the former 10 Listing criterion for a disabling impairment, and was a condition that 11 could have exacerbated her diabetes and hypertension.10 12 Ninth Circuit concluded that, in view of the claimant’s pro se status 13 and the evidence of her obesity, the ALJ should have developed the 14 record regarding her obesity. Id. at 1179. The Ninth Circuit First, the Ninth Circuit concluded that obesity had been Id. at 1182. Second, the Ninth Circuit concluded that the Id. Third, the Id. at 1182-83. 15 Plaintiff cites Celaya for the proposition that an ALJ always “must 16 17 determine the effect 18 impairments, his ability to work, and his general health.” (Joint Stip. 19 at 17-18.) Plaintiff, however, overlooks the Ninth Circuit’s subsequent 20 decision in Burch, supra, which clarified that Celaya does not establish 21 an absolute mandate that, in every case, an administrative law judge 22 specifically consider the interactive effects that obesity has on a 23 claimant’s 24 disability analysis. other of the impairments claimant’s throughout obesity the upon five-step his other sequential 25 26 10 27 28 Celaya was a 2-1 decision. The majority calculated the claimant’s BMI as being at least 44, which it described as being “extremely obese” within the meaning of the categories used by the Social Security Administration. 332 F.3d at 1179 (citing SSR 00-3p). 21 1 In Burch, the claimant, who was represented by counsel, alleged 2 that she was disabled based on breast cancer, asthma, back pain, 3 weakness, and depression. 4 that she was “‘slightly obese’” and had gained 25 pounds in the past 5 year, and one physician recommended that she join a medically-supervised 6 weight loss program. 7 testified that she was 5’4” and weighed 215 pounds, but stated her 8 “‘normal’” weight was 185. 9 find the claimant’s obesity to be a severe impairment. The medical evidence contained a notation 400 F.3d at 678. Id. At the hearing, the claimant The administrative law judge did not Id. at 682. On 10 appeal, relying on Celaya, the claimant argued that the administrative 11 law judge had erred in failing to consider her obesity throughout the 12 sequential disability analysis, including its interactive effects with 13 respect to her other impairments. Id. at 681-82. 14 15 The Ninth Circuit, in Burch, distinguished Celaya on two bases. 16 First, the record did not demonstrate that, with the possible exception 17 of 18 impairments. 19 claimant was represented by counsel. 20 addressed whether, assuming the administrative law judge erred at Step 21 Two in failing to find the claimant’s obesity to be a severe impairment, 22 there was any error at the remaining steps of the sequential evaluation. 23 The Ninth Circuit noted that, under SSR 02-01p, an administrative law 24 judge is precluded from making assumptions about the severity or 25 functional effects of obesity combined with other impairments, and each 26 case must be evaluated on the information in the case record. 27 682-83. The Ninth Circuit further noted that there was no evidence that 28 the claimant’s obesity limited her functioning, as there were no her back pain, the claimant’s 400 F.3d at 682. obesity exacerbated her other Second, and “[m]ore significantly,” the 22 Id. The Ninth Circuit then Id. at 1 treatment notes or diagnoses that addressed any limitations due to her 2 obesity, and the medical record was “silent” regarding whether and how 3 her obesity exacerbated her other impairments. 4 claimant did not present evidence or testify that her obesity impaired 5 her ability to work. 6 proffer evidence of functional limitations due to obesity, the Ninth 7 Circuit concluded that the administrative law judge did not commit 8 reversible error at Step Three in failing to consider the claimant’s 9 obesity. Id. at 683. In addition, the Given the claimant’s failure to The Ninth Circuit further found that the administrative law 10 judge 11 addressing her RFC and vocational ability, because he: acknowledged the 12 above-noted doctor notes; recognized that her obesity likely contributed 13 to her back discomfort; and after weighing the evidence, assessed her 14 with an RFC to perform a somewhat limited range of light work. 15 683-84. thereafter adequately considered the claimant’s obesity in Id. at 16 17 As in Burch, although the physicians who examined plaintiff noted 18 her weight, plaintiff cites no evidence that any physician or other 19 medical provider indicated that her obesity exacerbated her impairments 20 or resulted in any functional limitation. 21 did not claim to be disabled based on obesity when she applied for 22 benefits and, although represented by counsel when she testified before 23 the ALJ, did not raise her obesity in her testimony, whether as an 24 impairment or a source of functional limitations. (See A.R. 66,74, 107, 25 113, 288-303.) 26 evidence that her obesity limited her functioning, exacerbated her other 27 impairments, or was otherwise disabling. 28 physicians who examined plaintiff in April 2006, and November 2007, were Also as in Burch, plaintiff Further, as in Burch, plaintiff has not presented any 23 Indeed, the consultative 1 cognizant of her height and weight, as well as her other claimed 2 impairments, and nonetheless concluded that she retained the functional 3 capacity to perform work at a light exertional level with limitations. 4 (A.R. 429, 431, 434, 450-52, 455.) 5 expressly stated that he did take plaintiff’s obesity into consideration 6 when he assessed her RFC consistently with the foregoing consultative 7 physician opinions. Moreover, as in Burch, the ALJ (A.R. 240.) 8 9 This case differs in one material, and critical, respect from Unlike in that case, the ALJ here did find that plaintiff’s 10 Burch. 11 obesity constituted a severe impairment at Step Three. 12 Burch, it is not clear that the ALJ actually failed to consider 13 plaintiff’s obesity, in combined effect with her other impairments, in 14 making his Step Three finding. 15 however, given plaintiff’s failure to present evidence regarding the 16 effect of her obesity when combined with her other impairments, the 17 Court would not find reversible error at Step Three, based on the 18 rationale set forth in Burch. As in that decision, plaintiff simply has 19 not offered any evidence, or plausible theory, showing that her obesity, 20 alone or in combination with her other impairments, met or equaled any 21 Listing. 22 the combined effects of an impairment unless the claimant presents 23 evidence to establish equivalence). 24 reversible error in the ALJ’s consideration of the subsequent Steps. As 25 in Burch, there was no evidence presented to the ALJ of any functional 26 limitations due to plaintiff’s obesity that detract from the ALJ’s RFC 27 assessment and/or that he failed to consider. Thus, unlike in Even if, arguendo, he failed to do so, See Burch, 400 F.3d at 683 (an ALJ is not required to discuss 28 24 There also is no basis for finding 1 Accordingly, the Court concludes that there was no reversible error 2 committed by the ALJ in connection with his consideration of plaintiff’s 3 obesity. 4 5 III. The ALJ Erred At Step Five. 6 7 As noted earlier, the ALJ adopted the RFC assessment of Dr. 8 Clements, namely, for light work with additional limitations, with 9 respect to plaintiff’s RFC prior to December 27, 2007. (A.R. 242.) At 10 the hearing, the ALJ asked the testifying vocational expert (“VE”) 11 whether, assuming the RFC assessed by Dr. Clements, plaintiff could 12 perform her past relevant work; the VE testified that plaintiff could do 13 so, along with a wide range of other light, unskilled work in the areas 14 of assembly, inspection, and sorting. 15 questioning, the VE sua sponte noted that the medical records indicated 16 plaintiff “may require a cane to ambulate for prolonged periods of 17 time,” and the VE opined that this would preclude plaintiff’s past work 18 as a prep cook. 19 usage, plaintiff’s RFC would remain set at light, unskilled work, and 20 her past relevant work as a clothes tagger, as well as some assembly, 21 bench work, and sorting jobs, would not be precluded, but there would be 22 some erosion as to jobs that require prolonged standing. (A.R. 316-17.) (A.R. 315-16.) Upon further The VE clarified that, with the cane (A.R. 317.) 23 24 Im his decision, the ALJ found that, prior to December 27, 2007, 25 there were a significant number of jobs in the national economy that 26 plaintiff could have performed, although he did not identify any such 27 jobs. 28 finding, the ALJ did not mention the VE’s testimony and focused only on (A.R. 243.) In his supporting discussion for this Step Five 25 1 application of the Grids. (A.R. 243-44.) After a general discussion of 2 how the Grids are used when a claimant has only exertional limitations, 3 only non-exertional limitations, or a combination thereof, the ALJ 4 concluded that, prior to December 27, 2007, “based on a residual 5 functional capacity for light work, considering [plaintiff’s] age, 6 education, and work experience, a finding of ‘not disabled’ is reached 7 by direct application of Medical-Vocational Rule 202.17.” (A.R. 244.) 8 9 At Step Five of the sequential evaluation, the burden shifts from 10 the claimant to the ALJ to show that the claimant is able to perform 11 other work that exists in the national economy. Osenbrock v. Apfel, 240 12 F.3d 1157, 1162 (9th Cir. 2000). 13 taking the testimony of a vocational expert or by referring to the 14 Grids. Id.; see also Tackett, 180 F.3d at 1101 (describing how VE 15 testimony and the Grids are used at Step Five). 16 that are used “for determining the availability and number of suitable 17 jobs for a claimant.” 18 Cir. 2006). 19 requirements.11 The ALJ can meet this burden by either The Grids are tables Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th The Grids categorize jobs by their physical-exertional Id. 20 21 Reliance on the Grids alone to meet the Commissioner’s burden at 22 Step Five is proper only when they completely and accurately represent 23 a claimant’s limitations. Bruton v. Massanari, 268 F.3d 824, 827 (9th 24 11 25 26 27 28 Exertional limitations are strength related limitations, such as limitations on sitting, standing, walking, lifting, carrying, pushing, and pulling. Non-exertional limitations are non-strength related limitations, such as pain and mental, sensory, postural, manipulative, visual, and environmental limitations. See, e.g., Tackett, 180 F.3d at 1102; Cooper v. Sullivan, 880 F.2d 1152, 1156 n.6-n.7 (9th Cir. 1989); Desrosiers, 846 F.2d at 577 (Pregerson, J., concurring); 20 C.F.R. § 416.967. 26 1 Cir. 2001); Tackett, 180 F.3d at 1101. 2 must be able to perform the full range of jobs in a given category’ in 3 order for the Commissioner to appropriately rely on the grids.” Bruton, 4 268 F.3d at 827-28 (quoting Tackett). 5 exertional 6 limitations significantly limit the range of work he can perform, 7 mechanical application of the Grids is inappropriate. Tackett, 180 F.3d 8 at 1102, 1104. 9 limitations alone warrant a finding of disability under the Grids; if 10 not, further evidence must be adduced, namely, the testimony of a VE. 11 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000); Cooper, 880 F.2d at 12 1155. and non-exertional “‘In other words, a claimant When a claimant has both limitations and the non-exertional The ALJ must first determine whether the exertional 13 14 At the hearing, the ALJ elicited the above-described testimony by 15 the VE. However, as plaintiff observes, the ALJ failed to direct the VE 16 to consider all of plaintiff’s impairments. The ALJ simply asked the VE 17 to look at the paragraphs in the opinions of Drs. Clements and Lin 18 setting forth their specific RFC assessments; he did not ask the VE to 19 consider what effect plaintiff’s severe impairments of chronic pain and 20 right eye injury might have on plaintiff’s ability to perform her past 21 relevant work or any other jobs in the national economy.12 22 In posing a hypothetical to a vocational expert, the ALJ must 23 24 accurately reflect all of the claimant’s limitations. 25 849 F.2d 418, 422-23 (9th Cir. 1988). Embrey v. Bowen, “The ALJ’s depiction of the 26 27 28 12 The ALJ also did not ask the VE to consider what effect plaintiff’s use of a cane would have, but the VE nevertheless raised that issue and discussed the effect of the cane, as mentioned above. 27 1 claimant’s disability [to the VE] must be accurate, detailed, and 2 supported by the medical record.” 3 however, is not required to include all limitations asserted by the 4 claimant. 5 Instead, it is proper for the ALJ to limit a hypothetical to those 6 impairments that are supported by substantial evidence in the record. 7 Osenbrock, 240 F.3d at 1163-64. Tackett, 180 F.3d at 1101. The ALJ, Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). 8 The 9 ALJ specifically found that plaintiff has the severe 10 impairments of a history of chronic lower back, right hip, pelvic, and 11 left shoulder pain, and a history of right eye injury. 12 ALJ 13 limitations, including postural and visual limitations. 14 Presumably, he would not have found those impairments and non-exertional 15 limitations 16 substantial evidence.13 17 in the hypotheticals posed to the VE, yet he failed to do so. The 18 record the 19 requirement that he elicit VE testimony in view of plaintiff’s non- 20 exertional 21 meaningfully. further found to here that exist shows plaintiff unless believed numerous they The non-exertional were (A.R. 240.) supported by Accordingly, he was obligated to include them that, limitations, he had (A.R. 239.) while he the failed ALJ to paid lip fulfill service that to requirement 22 The ALJ’s error with respect to the VE testimony elicited is 23 24 13 25 26 27 28 The Commissioner’s attempt to brush the ALJ’s findings in this respect aside by the comment that the ALJ’s adverse credibility finding is not challenged (Joint Stip. at 7) is not persuasive. While the ALJ may have found that plaintiff’s statements regarding the “intensity, persistence, and limiting effects of” her symptoms to be not credible (A.R. 242), this adverse finding is distinct from, and does not negate, his extant findings that plaintiff has the severe impairments found at Step Two and is subject to a host of non-exertional limitations. 28 1 compounded by his apparent disregard of the VE’s testimony entirely when 2 he rendered his decision. 3 ALJ acknowledged that the VE had testified, the ALJ made no further 4 mention of that testimony, and at Step Five, he relied solely on a 5 “direct application of” the Grids to find that plaintiff could perform 6 a substantial number of unidentified jobs in the national economy prior 7 to December 27, 2007. 8 found by the ALJ, the ALJ’s reliance solely on the Grids was improper. 9 Moreover, given the VE’s testimony that plaintiff’s use of a cane would 10 erode the jobs available in the light, unskilled category, the ALJ’s 11 sole reliance on the Grids was improper, because use of the Grids is 12 appropriate only when the claimant is able to perform the full range of 13 work in a given category. Although, at the outset of his decision, the Given the significant non-exertional limitations Tackett, 180 F.3d at 1101. 14 15 The ALJ’s failure to properly adduce and consider vocational expert 16 testimony, and his reliance solely on the Grids, at Step Five 17 constitutes error. 18 because even though the VE testified that plaintiff can perform one of 19 her prior jobs with the use of a cane and can perform a wide range of 20 light, unskilled work, the VE was not asked whether plaintiff can 21 perform such jobs in the light of her other impairments and limitations. 22 As a result of this error, the Commissioner failed to meet his burden at 23 Step Five. The Court does not find this error to be harmless, Accordingly, reversal is required. 24 25 IV. Remand For Limited Further Proceedings Is Appropriate. 26 27 For 28 affirmed the with reasons respect noted to above, the the second 29 Commissioner’s and third decision issues raised is by 1 plaintiff, but is reversed with respect to the first issue raised by 2 plaintiff. 3 further proceedings, or reverse and remand for an award of benefits. The question, thus, is whether to reverse and remand for 4 5 The decision whether to remand for further proceedings or order an 6 immediate award of benefits is within the district court’s discretion. 7 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 8 useful purpose would be served by further administrative proceedings, or 9 where the record has been fully developed, it is appropriate to exercise Where no 10 this discretion to direct an immediate award of benefits. Id. at 1179 11 (“[T]he decision of whether to remand for further proceedings turns upon 12 the likely utility of such proceedings.”). 13 outstanding issues that must be resolved before a determination of 14 disability can be made, and it is not clear from the record that the ALJ 15 would be required to find the claimant disabled if all the evidence were 16 properly evaluated, remand is appropriate. However, where there are Id. at 1179-81. 17 18 Here, a critical issue remains, namely, whether plaintiff could 19 have performed any work prior to December 27, 2007, if her impairments 20 and non-exertional limitations are properly considered as a part of that 21 determination. 22 ALJ would be required to find plaintiff disabled prior to that date, 23 even if the appropriate Step Five inquiry had been made. 24 this case must be remanded to the Commissioner solely for the purpose of 25 resolving this issue. 26 necessary vocational expert testimony and consider it properly in making 27 the Step Five determination. In addition, should the Commissioner again 28 conclude that there was a significant number of jobs in the national On the record before the Court, it is not clear that the Accordingly, On remand, the Commissioner must adduce the 30 1 economy that plaintiff could have performed prior to December 27, 2007, 2 the 3 unidentified “jobs,” as was made by the ALJ, will not suffice to meet 4 the Commissioner’s burden. Commissioner must identify such jobs; a vague allusion to 5 6 CONCLUSION 7 8 Accordingly, for the reasons stated above, the Commissioner’s 9 decision is REVERSED, and this case is remanded to the Commissioner for 10 the further proceedings specified above. 11 12 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 13 copies of this Memorandum Opinion and Order and the Judgment on counsel 14 for plaintiff and for defendant. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 DATED: September 22, 2010 19 20 21 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 31
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