Murr v. Colvin, No. 1:2014cv03144 - Document 26 (E.D. Wash. 2015)
Court Description: ORDER GRANTING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case closed. Signed by Judge Stanley A Bastian. (CV, Case Administrator)
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Murr v. Colvin Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 MICHAEL MURR, 10 Plaintiff, 11 NO. 1:14-cv-03144-SAB v. 12 CAROLYN W. COLVIN, Acting ORDER GRANTING 13 Commissioner of Social Security PLAINTIFF’S MOTON FOR 14 Administration, SUMMARY JUDGMENT; 15 Defendant. DENYING DEFENDANT’S 16 MOTION FOR SUMMARY 17 JUDGMENT 18 19 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 20 13, and Defendant’s Motion for Summary Judgment, ECF No. 19. The motions 21 were heard without oral argument. Plaintiff is represented by D. James Tree. 22 Defendant is represented by Assistant United States Attorney Pamela De Rusha 23 and Special Assistant United States Attorney Daphne Banay. 24 I. 25 On June 23, 2010, Plaintiff filed a Title II application for disability Jurisdiction 26 insurance benefits and a Title XVI application for supplemental security income 27 (SSI). In both applications, Plaintiff alleged he is disabled beginning June 22, 28 2010, due to learning disabilities, intellectual disability, and depression. ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 His application was denied initially on December 3, 2010, and again denied 2 on reconsideration on February 8, 2011. A timely request for a hearing was made. 3 On October 9, 2012, a video hearing was scheduled. Plaintiff’s counsel was 4 present in Yakima, but because the prior hearing had run over by one-and-a-half 5 hours, Plaintiff left when his ride showed up, thinking if he missed his ride, he 6 would have to walk home and lose his ride privileges. The ALJ, after hearing what 7 had happened, continued with the testimony of the vocational expert Trevor 8 Duncan, M.Ed, MBA, CDMS. Afterward, she sent Plaintiff a “show cause” letter. 9 Plaintiff filed a response, and the ALJ found good cause existed for Plaintiff’s 10 failure to appear. A video hearing was rescheduled for May 14, 2013. On that day, 11 Plaintiff appeared at the video hearing in Yakima, Washington before 12 Administrative Law Judge (ALJ) Laura Valente who presided over the hearing 13 from Seattle. Kimberly Mullinax, vocational expert, also appeared at the hearing. 14 Plaintiff was represented by attorney D. James Tree. 15 The ALJ issued a decision on July 12, 2013, finding that Plaintiff was not 16 disabled. Plaintiff timely requested review by the Appeals Council, which denied 17 his request for review on August 22, 2014. The Appeals Council’s denial of 18 review makes the ALJ’s decision the final decision of the Commissioner. 42 19 U.S.C. §405(h). 20 Plaintiff filed a timely appeal with the U.S. District Court for the Eastern 21 District of Washington on October 7, 2014. The instant matter is before this Court 22 pursuant to 42 U.S.C. § 405(g). 23 II. Sequential Evaluation Process 24 The Social Security Act defines disability as the “inability to engage in any 25 substantial gainful activity by reason of any medically determinable physical or 26 mental impairment which can be expected to result in death or which has lasted or 27 can be expected to last for a continuous period of not less than twelve months.” 28 42 U.S.C. § 423(d)(1)(A). A claimant shall be determined to be under a disability ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 only if his impairments are of such severity that the claimant is not only unable to 2 do his previous work, but cannot, considering claimant’s age, education and work 3 experiences, engage in any other substantial gainful work which exists in the 4 national economy. 42 U.S.C. §423(d)(2)(A). 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. § 416.920(a)(4); Bowen v. 7 Yuckert, 482 U.S. 137, 140-42 (1987). 8 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. § 9 416.920(b). Substantial gainful activity is work done for pay and requires 10 compensation above the statutory minimum. 20 C.F.R. § 416.972(a); Keyes v. 11 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 12 substantial activity, benefits are denied. 20 C.F.R. § 416.971. If he is not, the ALJ 13 proceeds to step two. 14 Step 2: Does the claimant have a medically-severe impairment or 15 combination of impairments? 20 C.F.R. § 416.920(c). If the claimant does not 16 have a severe impairment or combination of impairments, the disability claim is 17 denied. A severe impairment is one that lasted or must be expected to last for at 18 least 12 months and must be proven through objective medical evidence. 20 19 C.F.R. § 416.909. If the impairment is severe, the evaluation proceeds to the third 20 step. 21 Step 3: Does the claimant’s impairment meet or equal one of the listed 22 impairments acknowledged by the Commissioner to be so severe as to preclude 23 substantial gainful activity? 20 C.F.R. § 416.920(d); 20 C.F.R. § 404 Subpt. P. 24 App. 1. If the impairment meets or equals one of the listed impairments, the 25 claimant is conclusively presumed to be disabled. Id. If the impairment is not one 26 conclusively presumed to be disabling, the evaluation proceeds to the fourth step. 27 Before considering Step 4, the ALJ must first determine the claimant’s 28 residual functional capacity. 20 C.F.R. § 416.920(e). An individual’s residual ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 functional capacity is his ability to do physical and mental work activities on a 2 sustained basis despite limitations from her impairments. 3 Step 4: Does the impairment prevent the claimant from performing work he 4 has performed in the past? 20 C.F.R. § 416.920(f). If the claimant is able to 5 perform his previous work, he is not disabled. Id. If the claimant cannot perform 6 this work, the evaluation proceeds to the fifth and final step. 7 Step 5: Is the claimant able to perform other work in the national economy 8 in view of his age, education, and work experience? 20 C.F.R. § 416.920(g). 9 The initial burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Tackett v. Apfel, 108 F.3d 1094, 1098 11 (9th Cir. 1999). This burden is met once a claimant establishes that a physical or 12 mental impairment prevents his from engaging in her previous occupation. Id. At 13 step five, the burden shifts to the Commissioner to show that the claimant can 14 perform other substantial gainful activity. Id. 15 III. Standard of Review 16 The Commissioner’s determination will be set aside only when the ALJ’s 17 findings are based on legal error or are not supported by substantial evidence in th 18 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9 Cir. 1992) 19 (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 20 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” th 21 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9 Cir. 1975). Substantial 22 evidence is “such relevant evidence as a reasonable mind might accept as adequate 23 to support a conclusion.” Richardson, 402 U.S. at 401. The Court must uphold the 24 ALJ’s denial of benefits if the evidence is susceptible to more than one rational 25 interpretation, one of which supports the decision of the administrative law judge. th 26 Batson v. Barnhart, 359 F.3d 1190, 1193 (9 Cir. 2004). “If the evidence can 27 support either outcome, the court may not substitute its judgment for that of the 28 ALJ.” Matney, 981 F.2d at 1019. ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 A decision supported by substantial evidence will be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the th 3 decision. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9 4 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are 5 immaterial to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. th 6 Admin., 454 F.3d 1050, 1055 (9 Cir. 2006). 7 IV. Statement of Facts 8 The facts have been presented in the administrative transcript and the ALJ’s 9 decision and will only be summarized here. 10 At the time of the hearing, Plaintiff was 20 years old. Although Plaintiff 11 graduated from high school, he was in special educations classes throughout the 12 entirety of his school years. He received a Special Education twelfth grade 13 equivalency. Plaintiff has past part-time work experience. He worked as a park 14 aide for four months, picking up garbage and helping clean parks; worked for 15 Little Ceasar’s Pizza for a year; and worked for a year at the Yakima Transit 16 Center selling bus passes. This position was characterized as on-the-job training in 17 the record. 18 Plaintiff lives with his parents. He mows the lawn and cleans his room. He 19 is able to cook simple meals, but needs assistance to shop for groceries. He does 20 not have a driver’s license. He has failed the written driving test three times. He 21 usually uses Dial-A-Ride to attend appointments. His latest IQ testing reveals a 22 Full Scale IQ of 71. He has difficulty with abstract thought processes to make 23 good decisions and judgments. He spends most of his days at the Sunrise Club, 24 which is a day treatment program supported by Central Washington 25 Comprehensive Mental Health. There, he assists at the front desk and also assists 26 in the thrift store. 27 In 2007, when Plaintiff was 17, he sexually molested a friend of his younger 28 brother by kissing him and putting his hands down his pants. The boy reported the ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 molestation in 2008. Plaintiff was interviewed by police officers and he admitted 2 to touching the victim. In 2009, he was charged with First Degree Child 3 Molestation and was sentenced to 30 days in jail. At the time of the hearing, he 4 was actively participating in sexual offender counseling with Mark Cross, PhD. 5 Dr. Cross is a Certified Sex Offender Treatment Provider. 6 V. The ALJ’s findings 7 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 8 activity since June 22, 2010, the application date. (Tr. 21.) 9 At step two, the ALJ found Plaintiff has the following severe impairments: 10 learning disorder, borderline intellectual functioning and depressive disorder. (Tr. 11 21.) 12 At step three, the ALJ found that Plaintiff’s impairments or combinations of 13 impairments do not meet or medically equal Listing 12.05 (Intellectual Disability). 14 (Tr. 22.) 15 The ALJ concluded that Plaintiff has the residual functional capacity to 16 perform a full range of work with the following limitations: He can climb ramps 17 and stairs without limitations; frequently climb ladders, ropes, and scaffolds, 18 balance, stoop and crawl; crouch and kneel without limitations. He has frequent 19 near and far acuity with lenses and should avoid concentrated exposure to hazards 20 such as dangerous moving machinery and heights. 21 The ALJ found that Plaintiff has sufficient concentration to understand, 22 remember and carry out simple, repetitive tasks; can maintain concentration and 23 attention in 2-hour increments for simple, repetitive type work throughout an 824 hour workday with usual and customary breaks; can work in proximity to an 25 unlimited number of coworkers, but he should not work in coordination with 26 them; can get along with coworkers without distracting them; can work 27 superficially and occasionally with the general public; can have occasional 28 interaction with supervisors; can respond to simple changes in the workplace, as ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 may be required and as are consistent for a simple repetitive type work 2 environment. The ALJ concluded that with the above restrictions, Plaintiff can 3 complete a normal workday without interruption. (Tr. 24.) At step four, the ALJ found Plaintiff was not capable of performing any past 4 5 relevant work as an information clerk, pizza baker, cashier, and park aide. (Tr. 32.) At step five, the ALJ found there were jobs that exist in significant numbers 6 7 in the national economy that Plaintiff can perform. (Tr. 32.) Because Plaintiff’s 8 ability to perform work at all exertional levels was compromised by his 9 nonexertional limitations, the ALJ consulted with the vocational expert, who 10 determined that Plaintiff can perform the requirements of representative 1 11 occupations such as assembler, and cleaner, housekeeping. (Tr. 34.) As a result, 12 the ALJ concluded that Plaintiff has not been under a disability, as defined in the 13 Social Security Act, since June 23, 2010. 14 VI. Issues for Review 15 1. Did the ALJ commit harmful, reversible error in discounting Dr. 16 Mark Cross’s extensive treatment notes and specifically in rejecting his Mental 17 Source Statement in formulating her RFC findings? 2. 18 Did the ALJ commit harmful, reversible error by failing to weigh the 19 opinions of Ms. Boyer and Ms. Spitler, and improperly selecting limited 20 information from their reports to support her conclusions? 3. 21 When the improperly discredited evidence is credited-as-true does it 22 become clear that the proper remedy is remand for an immediate award of 23 benefits? 4. 24 Did the ALJ commit harmful, reversible error in discounting 25 Plaintiff’s credibility on the basis of an erroneous interpretation of his activities of 26 daily living? 27 1 28 At the prior hearing, the vocational expert identified other representative occupations Plaintiff could perform such as auto cleaner, production assembler, and mail clerk. (Tr. 34.) ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 VII. Discussion 2 After reviewing the record and specifically the transcript of the hearing, it 3 becomes clear that Plaintiff is unable to perform gainful employment in the 4 national economy. As Plaintiff’s attorney demonstrated at the hearing, Plaintiff’s 5 defense mechanism when he is unsure of the question is to generally agree with 6 statements posed by the ALJ. Rather than recognize this, the ALJ just continued 7 the questions as if Plaintiff had answered accurately. She then relied on his 8 answers to her statements to support her decision that Plaintiff is not disabled. The 9 record adequately demonstrates that Plaintiff thinks slowly and when he is unable 10 to process information quickly enough, he simply agrees with the questioner. This 11 is adequately explained in the record, and specifically by Dr. Ronald Roesch, a 12 forensic psychologist who evaluated Plaintiff’s understanding of his Miranda 13 rights when he was arrested as well as his risk of reoffending in the future. 14 Additionally, in their police reports written in 2008, the Union Gap police officers 15 noted that Plaintiff suffers from some sort of mental disability and is slow at 16 processing information. It was readily apparent to these officers that Plaintiff was 17 not a normal functioning adult. Yet, in spite of all this evidence, the ALJ 18 concluded that Plaintiff “is a highly functioning individual who has made a few 19 bad mistakes in his life.” This conclusion is not supported by substantial evidence. 20 The ALJ gave little weight to Dr. Cross’ residual functional capacity 21 assessment because Dr. Cross has been treating Plaintiff to ensure that he complies 22 with court-mandated conditions and to rehabilitate him, which apparently 23 disqualifies him from evaluating whether Plaintiff could sustain a full time job. 24 The ALJ concluded that Dr. Cross’ ratings are inconsistent with Plaintiff’s work 25 history, and his active lifestyle. The ALJ’s rejection of Dr. Cross’ opinion was in 26 error. 27 Notably, Dr. Cross is a treatment provider who has continued to treat him 28 over the years. His opinion has remained unchanged. He assessed mild-toORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 moderate limitations in the ability to ask simple questions or request assistance, 2 and moderate limitations in the ability to understand and remember very short 3 and simple instructions. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 He assessed moderate-to-marked limitations in the ability to: perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; sustain an ordinary routine without special supervision, make simple work-related decisions; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and to adhere to basic standards of neatness or cleanliness; be aware of normal hazards and take appropriate precautions. He assessed marked limitations in the ability to: remember locations and work-like procedures; understand and remember very short and simple instructions; maintain attention and concentration for extended periods; 20 complete a normal workday and workweek without interruptions from 21 psychologically based symptoms and to perform at a consistent pace 22 without an unreasonable number and length of rest periods; 23 24 25 26 27 28 set realistic goals or make plans independently of others. He assessed marked to severe limitations in the ability to: understand and remember detailed instructions; carry out detailed instructions; work in coordination with or proximity to others without being distracted by them; ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 2 3 interact appropriately with the general public; respond appropriately to changes in the work setting According to Dr. Cross, Plaintiff’s ability to think in the abstract, that is to 4 predict the outcomes of various choices, is extremely limited. This conclusion is 5 supported in the record. 6 The ALJ is tasked with resolving conflicts in the medical evidence. Andrews th 7 v. Shalala,, 53 F.3d 1035, 1039 (9 Cir. 1995). Generally speaking, three types of 8 doctors provide medical evidence: treating doctors, examining doctors, and 9 reviewing (non-examining) doctors. “By rule the Social Security Administration 10 favors the opinion of a treating physician over non-treating physicians.” 20 C.F.R. th 2 11 § 416.927 ; Orn v. Astrue, 495 F.3d 625, 631 (9 Cir. 2007). “If a treating 12 physician’s opinion is well-supported by medically acceptable clinical and 13 laboratory diagnostic techniques and is not inconsistent with the other substantial 14 evidence in the case record, it will be given controlling weight.” Orn, 495 F.3d at 15 631. If a treating physician’s opinion is not given “controlling weight” because it 16 does not meet these requirements, the ALJ should consider (i) the length of the 17 treatment relationship and the frequency of examination by the treating physician; 18 and (ii) the nature and extent of the treatment relationship between the patient and 19 the treating physician in determining the weight it will be given. Id. The ALJ is 20 not required, however, to merely accept the opinion of a treating doctor. Lester v. 21 22 2 20 C.F.R. § 416.927(c)(2) states: Generally, we give more weight to opinions 23 from your treating sources, since these sources are likely to be the medical 24 professionals most able to provide a detailed, longitudinal picture of your medical 25 impairment(s) and may bring a unique perspective to the medical evidence that 26 cannot be obtained from the objective medical findings alone or from reports of 27 individual examinations, such as consultative examinations or brief 28 hospitalizations. ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 th 1 Chater, 81 F.3d 821, 830 (9 Cir. 1995). Where contradicted, the ALJ may reject 2 the opinion for specific and legitimate reasons that are supported by substantial 3 evidence in the record. Id. On the other hand, where the treating doctor’s opinion 4 is uncontradicted, the ALJ can only reject it for clear and convincing reasons. Id. 5 The opinions of examining physicians are afforded more weight than those of non6 examining physicians. Id. 7 Factors the ALJ should consider in evaluating any medical opinion (not 8 limited to the opinion of the treating physician) include: (1) the amount of relevant 9 evidence that supports the opinion and the quality of the explanation provided; (2) 10 the consistency of the medical opinion with the record as a whole; (3) the specialty 11 of the physician providing the opinion; and (4) other factors, such as the degree of 12 understanding a physician has of the Administration’s disability programs and 13 their evidentiary requirements and the degree of his or her familiarity with other 14 information in the case record. Orn, 495 F.3d at 631. 15 In this case, the ALJ made a number of errors in issuing her ruling. First, the 16 ALJ erred in imposing a blanket rejection of opinions from providers who were 17 not specifically assessing Plaintiff’s ability to work, such as Dr. Cross and Dr. 18 Roesch. In doing so, she failed to consider important information contained in the 19 record regarding Plaintiff’s true abilities. Moreover, the ALJ erred in not crediting 20 Dr. Cross’s opinions, which were substantially supported by the opinions of Dr. 21 Roesch, Debbie Spitler, and Krystal Boyer. Additionally, Dr. Schultz concluded 22 that Plaintiff’s low retrieval, learning slope, and working memory would create 23 problems in a work situation resulting in difficulties remembering and learning 24 new tasks, which supports Dr. Cross’s conclusions about Plaintiff’s ability to 25 work. (Tr. 533.) Dr. Cross is a treating provider, who spent considerable time with 26 Plaintiff, was consistent in his opinions, and has the specialty and expertise to 27 evaluate Plaintiff. The ALJ erred in giving more weight to the opinions of non28 examining experts. The record demonstrates that Plaintiff worked unsuccessfully ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 at three part-time jobs, which is substantial evidence that Plaintiff is not able to 2 succeed at full-time work. The ALJ erred in concluding that these jobs 3 demonstrated an ability to successfully engage in full-time, on-going, and regular 4 work. 5 Additionally, the ALJ’s conclusions regarding Plaintiff’s activities of daily 6 living are not supported by the record. As such, the ALJ committed reversible 7 error in discounting Plaintiff’s credibility based on her characterization of his daily 8 living activities. Plaintiff lives with his parents. He is not independent. He testified 9 that he needs help when he goes grocery shopping. While the record indicates that 10 he took college classes, it appears that these classes were Adult Basic Education 11 classes, not classes the general population usually takes. Also, it appears that the 12 ALJ failed to make the connection that the Sunrise Club is an establishment open 13 only to those in mental health treatment at Central Washington Comprehensive 14 Mental Health. It is a day treatment program for persons with mental disabilities; 15 yet the ALJ appeared to equate Plaintiff’s attendance at the Club with 16 employment. Plaintiff did not apply for a job at the Sunrise Club. Rather, he 17 spends time at the club, and while there he volunteers to complete tasks for the 18 benefit of the members. It appears that each task lasts no more than 1 hour at a 19 time. Similarly, the ALJ’s reliance on Plaintiff’s participation in Toastmasters is 20 misplaced. It is apparent from even reading a stale transcript that Plaintiff has 21 intellectual deficits. His attorney writes that Plaintiff has intellectual defects that 22 are obvious when talking to him and the Court accepts this as true. It is easy to 23 infer that Plaintiff’s participation in Toastmasters may meet a social need, but the 24 record does not support a finding that his participation in Toastmasters 25 demonstrates transferable work skills. 26 It is obvious to the Court after reviewing the complete record that Plaintiff 27 is incapable of successfully engaging in substantial gainful activity on a full-time, 28 regular, and ongoing basis, even if the tasks he is given are simple and repetitive. ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 The only question, then, is whether the Court should remand the case for 2 additional proceedings, or remand for award and calculation of benefits. 3 Recently, the Ninth Circuit set forth three steps the Court needs to take in 4 applying the “credit-as-true” rule. First, the Court must determine whether the 5 “ALJ failed to provide legally sufficient reasons for rejecting evidence, whether 6 claimant testimony or medical opinion.” Treichler v. Comm., 775 F.3d 1090, th 7 1100-01 (9 Cir. 2014). Second, if the ALJ has erred, the Court needs to determine 8 whether “‘the record is fully developed,’ whether there are ‘outstanding issues that 9 must be resolved before a determination of disability can be made’ and whether 10 further administrative proceedings would be useful.” Id. (Citations omitted). 11 Further administrative proceedings are generally useful “where the record ‘has not 12 been fully developed,’ there is a need to resolve conflicts and ambiguities, or the 13 ‘presentation of further evidence . . . may well prove enlightening’ in light of the 14 passage of time.” Id. (Citations omitted). Third, if the Court concludes that no 15 outstanding issues remain and further proceedings would not be useful, the court 16 may apply the Ninth Circuit’s prophylactic Varney rule to find the relevant 17 testimony credible as a matter of law. Id. 18 The Court finds this case is one of those “rare circumstances” that permits it 19 to exercise its discretion to depart from the ordinary remand rule. As set forth 20 above, the ALJ failed to provide legally sufficient reasons for rejecting Dr. Cross’ 21 testimony. The record is fully developed and no outstanding issues remain. If Dr. 22 Cross’ testimony is credited and given its proper weight, it is clear that Plaintiff is 23 unable to perform substantial gainful employment. As such, a remand for a 24 calculation and award of benefits is appropriate. 25 Accordingly, IT IS HEREBY ORDERED: 26 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 27 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 28 3. The decision of the Commissioner denying benefits is reversed and ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 remanded to the agency for further proceedings consistent with this Order. 2 4. The District Court Executive is directed to enter judgment in favor of 3 Plaintiff and against Defendant. 4 IT IS SO ORDERED. The District Court Executive is hereby directed to 5 file this Order and provide copies to counsel. 6 DATED this 13th day of July, 2015. 7 8 9 10 11 12 13 Stanley A. Bastian United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14
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