Horton v. Commissioner Social Security Administration, No. 1:2012cv00612 - Document 25 (D. Or. 2013)

Court Description: OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 03/21/2013 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROBERT PATRICK HORTON, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. ALAN STUART GRAF 316 Second Road Summerto1vn, Tennessee 38483 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 JEFFREY R. MCCLAIN Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER 1:12-cv-00612-MA OPINION AND ORDER MARSH, Judge Plaintiff, Robert Patrick Horton, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security 405 (g). (SSI) See 42 U.S.C. benefits under Title XVI of the Act. 1381-1383f. income disability §§ 401-434, This court has jurisdiction pursuant to 42 U.S.C. For the reasons set forth below, I § REVERSE the final decision of the Commissioner and REMAND for further proceedings consistent with this opinion. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for DIB and SSI on April 10, 2009, alleging disability due to "[p)anhypopituitarism, [s]econdary to [c)raniopharyngioma." Tr. 186. denied initially and upon reconsideration. before an Administrative Law Judge which plaintiff was (ALJ) His application was A hearing was held on August 18, 2010, represented by counsel and testified. at In addition, plaintiff's mother, Dorothy Pauline Horton, testified on plaintiff's behalf. Vocational Expert (VE) Francene Geers was present throughout the hearing and testified. On September 24, 2010, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. 2 - OPINION AND ORDER After the Appeals Council declined review of the ALJ's decision, plaintiff timely filed a complaint in this court. FACTUAL BACKGROUND Born on April 15, 1964, plaintiff was 31 years old on the alleged onset date of disability and 46 years old on the date of the hearing. Plaintiff has a high school diploma, relevant work. Plaintiff Tr. 37-38. alleged December 30, 1995. his disabilities became disabling on In addition to the hearing testimony, plaintiff submitted an Adult Function Report. plaintiff's and no past treating physicians, Douglas Crane, M.D., one of wrote an· opinion as plaintiff's discharge report from a 2009 hospitalization. part of James B. Powell, Psy.D., evaluated plaintiff and submitted a Psychological Evaluation. Raymond P. Nolan, M.D., examined plaintiff and submitted an opinion regarding plaintiff's physical impairments. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 404.1520(a) (4) (i)-(v), Cir. 1999). show that (1987); 416.920(a) (4) (i)-(v). potentially dispositive. Steps One through Four. 140-42 20 Bowen v. C.F.R. Each step §§ is The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to a significant 3 - OPINION AND ORDER number of jobs exist in the national economy that the claimant can perform. 482 U.S. at See Yuckert, 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial gainful activity since See 20 C.F.R. December 30, 1995. §§ the alleged onset date, 404.1571 et seq., 416.971 et seq.; Tr. 13. At Step Two, the ALJ determined that plaintiff's anxiety disorder, affective disorder, cognitive disorder, hypothyroidism, See 2 0 C. F. R. and hypopituitarism were severe impairments. §§ 404.1520(c), 416.920(c); Tr. 14. At Step Three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled any See 20 C.F.R. listed impairment. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 14. The ALJ found that plaintiff had the residual functional capacity (RFC) to perform less than a full range of sedentary work. The ALJ limited plaintiff to lifting 10 pounds frequently and 20 pounds occasionally, walking or standing for two hours in an eighthour workday, and sitting for six hours in an eight-hour workday. The ALJ found that plaintiff could only occasionally push and pull with the upper left extremity, controls frequently. frequently, crouch but can use left and right foot The ALJ found that plaintiff could balance climb ramps and stairs only occasionally, occasionally, 4 - OPINION AND ORDER and could not climb ladders, stoop or ropes or The ALJ found that plaintiff could not kneel or crawl. scaffolds. The ALJ limited plaintiff to occasionally reaching with his nondominant left hand, except that he could not reach overhead with his left hand. The ALJ found that plaintiff should have no greater than occasional exposure to heights or hazardous machinery, could perform simple, routine, repetitive tasks, occasional contact with the public. but and could have Tr. 15. At Step Four, the ALJ determined that plaintiff had no past relevant work. Step At See 20 C.F.R. Five, however, §§ 404.1565, 416.965; Tr. 20. the ALJ found that jobs exist in significant numbers in the national economy that plaintiff can perform, including Surveillance System Monitor and Addresser. 20 C.F.R. §§ See 404.1569, 404.1569(a), 416.969, 416.969(a); Tr. 663- 64. Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff argues that the ALJ erred in three ways. First, plaintiff argues that the ALJ improperly discounted his testimony. Second, plaintiff maintains that the ALJ improperly weighed the medical testimony by rejecting the opinions of Drs. Crane, Powell, and Nolan. Finally, plaintiff asserts that the jobs supported by the RFC are so few that they do not amount to jobs that exist in significant numbers in the national economy. 5 - OPINION AND ORDER STANDARD OF REVIEW The affirm the court must Commissioner's if decision the Commissioner applied proper legal standards and the findings are supported by substantial evidence 405(g); Andrews v. in the 53 F. 3d 1035, Shalala, 42 U.S .·c. record. 1039 (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable Id. mind might accept as adequate to support a conclusion." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it The the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Rejection of Plaintiff's Testimony The ALJ discredited plaintiff's testimony because plaintiff did not seek medical treatment for the first fourteen years of his claimed disability, recent treatment notes show few complaints of disabling restrictions, medication substantially controlled plaintiff's hypopituitarism, and plaintiff's alleged concentration 6 - OPINION AND ORDER not were impairments findings objective with consistent or Tr. 16-17. plaintiff's self-described daily activities. In deciding whetheL' ·to accept subjective symptom testimony, an 20 C.F.R. ALJ must perform two stages of analysis. evidence the First, 416.929. claimant an underlying of impairment that expected to produce the symptoms alleged. F. 3d 1273, 1281-82 (9th Cir. 1996). 404.1529, objective produce must §§ medical could reasonably_ be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of his symptoms only by offering specific, convincing reasons for doing so. clear and Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility the why reasons the testimony is determination citing unpersuasive." Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999). In doing so, the ALJ must identify what testimony is credible and what testimony undermines the claimant's complaints, and make _''findings sufficiently specific to permit the court to conclude that the ALJ testimony." did not arbitrarily discredit [the) claimant's Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ may rely upon ordinary techniques of credibility evaluation in weighing the claimant's credibility. F. 3d 1035, 1039 (9th Cir. 2008). 7 - OPINION AND ORDER Tommasetti v. Astrue, 533 At the hearing, plaintiff stated that the biggest obstacle to maintaining immaturity, his is work which causes says he difficulty maintaining concentration and completing tasks. 50. Plaintiff Tr. 69. problems. testified also that he has short him Tr. 4 9- term memory Additionally , plaintiff testified that knee and back pain caused by rapid growth after having a brain tumor removed and subsequent hormone treatment as a teenager prevents him from Tr. 50-52. walking for extended periods. Plaintiff alleged that his hypopituitari sm and associated medications cause fatigue. 54, 58. Tr. As to his mental limitations, plaintiff alleged that his depression, anxiety, and immaturity cause him to be dependent on his mother for support because he does not eat appropriately or Tr. 59-60. take care of other daily chores when left alone. With his regard to activities living, of daily plaintiff indicated that he wakes up, cleans his room, vacuums and dusts the house three times per week, and performs other chores as assigned Tr. by his mother. 66-67. Plaintiff testified that he arranges the payment of family bills on the internet. Tr. 67. When his father was alive, plaintiff routinely woke at 6:00 am to monitor his father's stock portfolio, created daily reports .on the performance of the portfolio, and researched stocks at his father's direction. Tr. 43-45, 73-76, 79-84. Once he is finished with chores, plaintiff plays video games for four to five hours per day. Tr. 64. Plaintiff reports that he is also a very good reader, and 8 - OPINION AND ORDER enjoys reading mystery novels, military, and classic books. 70. Tr. Titles plaintiff has read include the "Harry Potteru series, "The Chronicles of Narnia,u and "Treasure Island.u Id. Plaintiff reported that he has no problem following the plotlines of the books he reads. The ALJ Id. first rejected plaintiff's subjective testimony because his alleged level of disability was inconsistent with the lack of medical treatment in the record from 1995 - the alleged onset date - until 2009 when plaintiff presented to the hospital with suicidal ideation disability benefits. and, Tr. 16. near the same time, applied for A claimant's unexplained failure to seek medical treatment for a disabling condition is an appropriate basis upon which an ALJ may discredit a testimony. claimant's subjective Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ's finding is supported by substantial evidence in the record. There are no medical records regarding any treatment between 1984 and 2009. This 25-year gap in the medical record includes the first fourteen years of plaintiff's alleged disability. The ALJ permissibly discredited plaintiff's subjective testimony on this basis. The ALJ also discredited plaintiff's subjective testimony because, with the exception of a hospital presentation in 2009, the claimant's "recent treatment notes show few complaints or findings indicative of disabling 9 - OPINION AND ORDER restrictions, a and plaintiff's hypopituitarism was controlled by medication. noted that 2009 hospitalization was the Tr. 16. The ALJ caused by plaintiff's cessation of medication, and that he showed immediate improvement upon the resumption of medication at the hospital and continued improvement after his release. Id. The ALJ's finding in this respect is supported by substantial Plaintiff presented to the hospital on April 8, evidence. with "suicidal ideation and major depression." was found to be "profoundly hypothyroid and hormone medication, replacement improved." Id. Plaintiff Tr. 262. in adrenal crisis After being put secondary to hypopi tui tar ism·." plaintiff 2009 "felt back on immediately At a follow-up appointment approximately one month after his hospitalization, plaintiff reported "feeling great," and, other than a plugged left ear, had "no problems." Tr. 275. In December of 2009, Nurse Practitioner Nancy Erb noted that plaintiff had a "[c]omplex health history, currently stable, feeling well." Tr. 342. This trend continued in July of 2010, when plaintiff was reported "[d]oing well with the meds for thyroid and pituitary." Tr. 459. The ALJ permissibly discredited plaintiff's subjective symptom testimony on this basis. The ALJ also discredited plaintiff's testimony because plaintiff's explanation for why he stopped taking his medication was contradicted by the record. Tr. 18. At the hearing, plaintiff reported that he stopped taking his medication because he did not 10 - OPINION AND ORDER have insurance. Tr. 60. Plaintiff testified that attempted to convince him to take his medication, refused. was Id. taking Similarly, examination, his mother but that he Plaintiff reported that he would tell her that he them, during but that his he 2009 did not have them. hospitalization and Tr. 2010 60-61. physical plaintiff reported that he had stopped taking his medication due to lack of insurance. Tr. 264, 438. At the hearing, however, plaintiff's mother testified that she thought plaintiff went off his medication because he did not like the way they made him feel. Tr. 90. Similarly, during the 2009 hospitalization, plaintiff's mother reported that plaintiff "simply got tired of taking [the medication] and has stopped and, despite her best efforts, he has been refusing for this long." Tr. 266. Plaintiff reportedly refused to take his medications because they made him feel nauseated. Id. The ALJ could reasonably discount plaintiff's testimony because his statement that he went off his medication due to lack of insurance was contradicted by the record. Finally, with respect to plaintiff's mental limitations, the ALJ found plaintiff's alleged symptoms not credible plaintiff did not seek any mental health treatment. is supported by substantial evidence. because This finding With the exception of some records of appointments with social workers in the early 1980s, there is no evidence of mental health treatment in the record. 356, 380-83. Tr. Indeed, other than the psychological evaluation, the 11 - OPINION AND ORDER only reference in the medical record to psychologica l problems were the severe depression associated with his cessation of medication during his 2009 hospitalizati on, and depression, and anxiety, insomnia that appear connected to his father's death in March of 2010. Otherwise, plaintiff denied or did not demonstrate Tr. 451. See Tr. any psychologica l symptoms. 275, 342, The ALJ's 451. finding in this respect is supported by substantial evidence and is a proper basis on which to reject plaintiff's testimony as to his I conclude See Fair, 885 F.2d at 603. mental health limitations. that the ALJ's reasons, when taken together, constitute clear and convincing reasons for rejecting plaintiff's testimony. II. Weighing the Medical Testimony Plaintiff asserts varying degrees, that in the ALJ erred the opinions of Drs. Crane, discrediting , Nolan, to and Powell. Generally, greater weight is given to the opinion of a physician who treats the claimant than to that of a physician who merely examines the claimant or reviews the claimant's records. Chater, 81 F. 3d 821, 830 (9th Cir. 1995). Lester v. The Commissioner must provide clear and convincing reasons to reject the uncontradicte d opinion of a treating or examining physician. Id. 830-31. Where a physician's opinion is contradicted by that of another physician, the ALJ may reject the first physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. Id. ~'The 12 - OPINION AND ORDER ALJ need not accept the opinion of any including a physician, brief, conclusory, treating physician, inadequately and if that supported opinion is clinical by Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) findings.'" (quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. "'Where, as here, 2009)). the record contains conflicting medical evidence, the ALJ is charged with determining credibility and resolving the conflict.'" F.3d 1030, 1040 (9th Cir. translating the claimant's Id. (quoting Benton v. Barnhart, 331 The ALJ is responsible for 2003)). medical conditions into functional See Stubbs-Danie lsen v. Astrue, 539 F.3d limitations in the RFC. 1169, 1174 (9th Cir. 2008). A. Dr. Crane In his decision, the ALJ gave little weight to Dr. Crane's opinion because it was inconsistent with his subsequent records that contain few complaints or findings that show any significant functional limitations. Tr. 19. In his Discharge Summary after plaintiff's 2009 hospitalizati on, Dr. Crane wrote: are disabling these be understood that It must deficiencies and that even with replacement he should be I would considered fully Social Security dependent. even if I needed to be support Social Security hearing, present to get him SSI, as there is no comprehendib le way He, at best, is that he could seek gainful employment. going to be weak and debilitated from his pituitary absence, and at worse [sic] ceasing his medications is fatal. Tr. 263. Dr. Crane's complete, permanent disability opinion was contradicted by both 13 - OPINION AND ORDER Drs. Powell and Nolan, who opined that plaintiff would likely be able to maintain employment at some point and in some fashion. Tr. 316, 439-40. Thus, the ALJ was required to cite specific and legitimate reasons, supported by substantial record evidence, to reject Dr. Crane's opinion. Lester, 81 F.3d at 830-31. Crane's Dr. rejected ALJ The opinion because it was inconsistent with his own subsequent records, and it was not clear Dr. Crane was familiar with definitions of "disability." from Dr. the statutory regulatory and Indeed, the only other note Tr. 19. Crane in the record reported that one month after the hospitalization, plaintiff problems" other than a was "feeling plugged ear. Tr. great," 275. and had "no The ALJ could reasonably find that this note is in stark contrast to the complete disability opinion Dr. Crane wrote one month earlier, and discredit his opinion on that basis. Additionally, the ALJ was correct that he was not required to give any weight to Dr. Crane's opinion that plaintiff was entirely disabled because the ultimate disability determination 404.1527 (d) (1). is reserved to the Commissioner. 20 C.F.R. § I conclude the ALJ cited specific and legitimate reasons, supported by substantial record evidence, to reject Dr. Crane's brief opinion. Ill Ill Ill 14 - OPINION AND ORDER Dr. Nolan B. The ALJ credited the opinion of Dr. Nolan, and incorporated it into the RFC. When describing plaintiff's functional limitations, Dr. Crane concluded: based on capabilities, function to In reference I would have him subjective complaints primarily, restrict activities involving squatting and kneeling and minimize bending, twisting and turning and limit lifting and carrying to 10 pounds on a frequent basis and up to 20 pounds occasionally. He should be able to sit for at least six hours in an eight-hour day with appropriate breaks as needed for comfort. He should be able to stand and or walk about two hours, and perhaps more, in an eight-hour day with opportunity for breaks as needed for He will have restrictions in reference to comfort. pushing and pulling, involving his left upper extremity in particular restrictions involving attempting to use Given his inability to his left arm extended overhead. self regulate hormone levels, with resultant complaint of decreased exercise endurance he would be best served by nonstrenuous activities and a more sedentary type of job. His communication skills are quite adequate. Tr. 440. had a Elsewhere in his opinion, Dr. Nolan noted that plaintiff "residual visual field deficit, 11 and checked that such impairment caused him to be unable to "avoid ordinary hazards in the workplace, such as on boxes approaching people or vehicles, 11 the floor, doors ajar, or but did not include it in the functional limitations portion of his discussion.' Tr. 439, 444. The ALJ is tasked with translating a doctor's opinion into functional limitations in the RFC. 1 See Stubbs-Danielsen, 539 F.3d I note that the ALJ's limitation of plaintiff to sedentary work would minimize some of these hazards. 15 - OPINION AND ORDER at 1174. Here, in translating Dr. Nolan's opinion into functional limitations, the ALJ relied heavily on the portion of the opinion Dr. Nolan described capabilities." Th.e as setting ALJ could out plaintiff's reasonably rely on "function Dr. Nolan's description of plaintiff's functional limitations, which did not expressly include plaintiff's peripheral vision deficit. The ALJ reasonably incorporated Dr. Nolan's opinion into the RFC. C. Dr. Powell The ALJ also partially discredited Dr. Powell's opinion. Dr. Powell concluded that while plaintiff's employment prognosis was "good," it may take a period of 12 months or more to fully recover from the hospitalization incident. opinion Kennemer, was contradicted Psy.D, and Dr. by Tr. 316. reviewing Nolan, at Because Dr. Powell's psychologist least as to Kordell N. plaintiff's immediate capacity to work, the ALJ was required to cite specific and legitimate reasons, supported by substantial record evidence, to reject Dr. Powell's opinion. Tr. 277-90, 438-46; Lester, 81 F.3d at 830-31. The ALJ does not appear to have rejected Dr. Powell's opinion in its entirety, findings. but rather only rejected some of Dr. Powell's The ALJ rejected Dr. Powell's findings that plaintiff has moderate limitations in concentration, persistence, and pace, and a marked limitation in his ability to independently manage activities of daily living, because they were inconsistent with Dr. 16 - OPINION AND ORDER Powell's own findings and the record as a whole. Tr. 19. In his opinion, Dr. Powell also found that plaintiff had a "marked level of impairment in the area of socialization," whereas the ALJ only found moderate limitations in social functioning. Notably, however, Dr. Powell concluded that the Tr. 14, 315. "prognosis [plaintiff] being able to maintain employment in the future considered to be good," but that rehabilitation after for is his hospitalization "may easily take a period of at least 12 months." Tr. 316. With respect limitations, to the rejection of the concentration the ALJ noted that plaintiff engaged in activities that could reasonably be interpreted as requiring concentration. For example, the ALJ noted that plaintiff testified he spent fourto-five hours, or more, per day playing video games that require the player to perform a series of goal-directed tasks. Tr. 64-66. Additionally, as the ALJ noted, plaintiff testified that he is a "very good reader," reads "all sorts of books," and has no trouble following along with plot lines. Tr. 70. Nonetheless, in his opinion, the ALJ gave "the benefit of the doubt to the claimant" and found that he may have moderate limitations in concentration, persistence, and pace. was accounted for Tr. 19. It is not clear, however, if this in the RFC or vocational hypothetical. The limitation to "simple, routine, repetitive work" does not, in every instance, accommodate 17 - OPINION AND ORDER moderate limitations in concentration, persistence, and pace. See Brink v. Comm'r Soc. Sec. Admin., 343 Fed. Appx. 211, 2009 WL 2512514 (9th Cir. 2009). In this case, it is not clear if the ALJ incorporated the moderate concentration, persistence, and pace limitations he accepted into the RFC, or what impact, if any, it would have on the disability determination. The ALJ also did not accept Dr. limitations in social functioning. Powell's finding of marked The ALJ, however, did not explain why he found only moderate limitations. Finally, the ALJ rejected Dr. Powell's finding of marked limitations with respect to plaintiff's ability to independently manage activities of daily living because plaintiff engages in numerous daily activities including household chores, driving, paying bills, researching stocks, playing video games, and reading. Tr. 19. structure Dr. Powell acknowledged, provided by relatively well." his Dr. parents, Powell's however, plaintiff point was that was that within the "functioning plaintiff had difficulty managing his activities of daily living outside the structure and support provided by his family. Tr. 315. The ALJ did not account for this in his explanation of his rejection of Dr. Powell's finding. I conclude the ALJ did not cite sufficient reasons for partially rejecting Dr. Powell's opinion. III. Existence of Jobs in Significant Numbers To find that a claimant is not disabled at Step Five, the Commissioner must demonstrate that the claimant is able to engage 18 - OPINION AND ORDER in jobs that exist in significant numbers in the national economy. See 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a). The jobs cited by the ALJ must be available in "significant numbers" in either the regional or national economy. F. 3d 386, 389 (9th Cir. 2012). Beltran v. Astrue, 700 The Ninth Circuit Court of Appeals has not established "a bright-line rule for what constitutes a 'significant number' of jobs." Id. At the hearing, the VE identified two jobs in response to the ALJ' s u1 timate hypothetical: Surveillance System Monitor, which the VE testified consisted of 47,000 jobs nationally and 210 in Oregon; and Addresser, which the VE testified consisted of 150,000 jobs nationally and 335 in Oregon. Tr. 21, 104, 106. that plaintiff cannot perform the The parties agree job of Addresser. · Plaintiff accordingly argues that the 47,000 jobs nationally and 210 jobs in Oregon that remain do not exist in sufficiently "significant numbers" to carry the Commissioner's burden. Because the Commissioner now concedes Addresser is not available to plaintiff, the number of Surveillance the job of I conclude that the ALJ should have the opportunity in the first whether that instance to determine System Monitor jobs are sufficient, or if there are additional jobs plaintiff can perform within an adequately supported RFC. See Hancock v. Barnhart, 153 Fed. Appx. 430, 2005 WL 2885475 (9th Cir. 2005) Commissioner under similar circumstances). 19 - OPINION AND ORDER (remanding to the IV. Remand After finding the ALJ erred, remand for benefits. further proceedings or for immediate payment of Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). further this court has discretion to proceedings. appropriate where there A The issue turns on the utility of remand is no for an useful award purpose of benefits to be is served by further proceedings or where the record is fully developed. The Ninth Circuit has established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed." Id. The court should grant an immediate award of benefits when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Id. Where it is not clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, the court has discretion whether to credit the evidence. Connett v. Barnhart, 340 F. 3d 871, 876 (9th Cir. 2003). In this case, there are outstanding issues to be resolved before a determination of disability can be made. As discussed above, the ALJ erred in addressing Dr. Powell's opinion. remand for reconsideration of Dr. Powell's opinion. 20 - OPINION AND ORDER Thus, I The ALJ should expressly accept or reject the concentration, persistence, and pace limitations, and accordingly determine what effect they have on the disability determination. Additionally, the ALJ should explain the partial rejection of Dr. Powell's social functioning limitations, and consider Dr. Powell's finding of marked limitations in independent management of daily activities, and explain what effect that has on the disability determination. Additionally, I order the Commissioner psychological evaluation performed. to have a new It is unclear to what extent Dr. Powell's opinion was addressing temporary limitations caused by plaintiff's cessation of medication and hospitalization. Dr. Powell concluded that plaintiff's future employment prognosis was good, but that it could take more than 12 months for sufficient recovery to take place. Tr. 316. A new psychological evaluation will allow for a more accurate assessment of plaintiff's functional capacity while properly medicated. psychological evaluation, Upon the completion of the new the ALJ must cite legally sufficient reasons for determining the appropriate weight to be given to the new evaluation and Dr. Powell's. Finally, the ALJ should revisit the determination of whether a significant number of jobs exist in the national economy that plaintiff can perform. In doing so, the ALJ may take additional VE testimony to accommodate any changes to the RFC or determine if there are other jobs plaintiff can perform. 21 - OPINION AND ORDER In short, resolved, and because outstanding issues remain which mu'st be because it is not clear from the record that Plaintiff is entitled to disability benefits, I reverse the ALJ's decision and remand for further administrative proceedings consistent with this opinion. CONCLUSION Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. DATED this ~ day of March, 2013. Malcolm F. Marsh United States District Judge 22 - OPINION AND ORDER

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