Angell v. Commissioner of Social Security, No. 2:2018cv00208 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER GRANTING, IN PART, ECF No. 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; and denying ECF No. 15 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)
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Angell v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Apr 22, 2019 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 CINDY ANN A., No. 2:18-CV-00208-JTR Plaintiff, 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 14, 15. Attorney Rosemary B. Schurman represents Cindy Ann A. (Plaintiff); 19 Special Assistant United States Attorney Franco L. Becia represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 On June 27, 2014, Plaintiff filed an application for a period of disability and 28 Disability Insurance Benefits, Tr. 15, 277-83, and an application for Supplemental ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 Security Income benefits, Tr. 15, 284-92. Plaintiff alleged a disability onset date 2 of June 30, 2008, Tr. 15, 277, 284, 321, due to post traumatic stress disorder, 3 depression, degenerative disc disease, and pain in shoulders and arms. Tr. 106. At 4 the administrative hearing, Plaintiff amended the alleged disability onset date to 5 June 2, 2013. Tr. 17, 56-57. Plaintiff’s applications were denied initially and upon 6 reconsideration. Administrative Law Judge (ALJ) Michael Gilbert held a video hearing on 7 8 September 7, 2016, Tr. 15, 50-103, and issued an unfavorable decision on April 28, 9 2017. Tr. 15-40. The Appeals Council denied review on May 18, 2018. Tr. 1-3. 10 The ALJ’s April 28, 2017, decision thus became the final decision of the 11 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 12 405(g). Plaintiff filed this action for judicial review on June 21, 2018. ECF No. 1, 13 4. STATEMENT OF FACTS 14 The facts of the case are set forth in the administrative hearing transcript, the 15 16 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 17 here. 18 Plaintiff was born on June 3, 1958 and was 56 years old on the date the 19 application was filed, June 27, 2014. Tr. 277, 284, 321. She has a high school 20 education. Tr. 62. Plaintiff testified she has been unemployed since 2013 and has 21 not sought employment since that time due to problems with her lower back, as 22 well as depression and chronic obstructive pulmonary disease (COPD). Tr. 63, 77. 23 Plaintiff testified that because of her back pain, she is only able to stand in 24 one place for about 15 or 20 minutes before having to move around or sit down, 25 and she is only able to walk about four blocks before she has to stop and take a 26 break. Tr. 79. She testified that she has to lie down once or twice a day, 27 depending on her pain level. Tr. 80. Plaintiff also testified that she can carry a 28 gallon of water and estimated that she can lift about eight pounds. Tr. 80. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 Plaintiff testified that physical therapy and the medication Gabapentin both 2 temporarily relieve her back pain. Tr. 63-64, 78. Although the Gabapentin can be 3 taken up to three times a day, Plaintiff testified that she generally takes it only once 4 a day because she does not like taking a lot of medication. Tr. 64-65. She testified 5 that Aspirin seems to work better than anything else for certain pain. Tr. 66. She 6 testified that she does not take any medications other than Gabapentin and Aspirin 7 for pain. Tr. 66. 8 Plaintiff testified that she is in counseling for her mental health issues. Tr. 9 67. She takes the medication Trazadone every night to help her sleep and for 10 depression. Tr. 67. She testified that she was given Trazadone when she was 11 seeking help with sleep. Tr. 74. 12 Plaintiff testified that she has a Serevent inhaler that she uses twice a day for 13 her COPD. Tr. 66. She also uses an Albuterol rescue inhaler as needed. Tr. 66- 14 67. She testified that she smokes anywhere from three quarters of a pack to a pack 15 of cigarettes a day, depending on how much she can afford. Tr. 60, 67. 16 Plaintiff testified that she previously worked at two casinos, and the heaviest 17 thing she ever had to lift in that job was the CO2 tank that she guessed may have 18 weighed 50 pounds. Tr. 83. She also worked in a deli as a barista and testified that 19 the heaviest items she ever had to lift in that job were buckets of water that she 20 guessed may have weighed 25 or 30 pounds. Tr. 83-84. She worked at a ribeye 21 restaurant and testified that the heaviest items she ever had to lift in that job were 22 boxes of soda and she guessed they may have weighed 35 to 40 pounds. Tr. 87. 23 Plaintiff lives in an apartment. Tr. 58. She has never been married and does 24 not have any children. Tr. 58. Plaintiff testified that she has had 10 DUIs, with the 25 last DUI in 2006, and she has not had a driver’s license since that time. Tr. 60, 72. 26 She testified that she likes to read, does the dishes, sweeps the floor, and her 27 boyfriend helps with the laundry because it is too hard for her to take it out of the 28 washer and put it in the dryer. Tr. 62, 82. Plaintiff testified that she and her ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 boyfriend attend church, and they also attend AA meetings. Tr. 73-74. Plaintiff 2 testified that in 2013 she and her boyfriend were living in their vehicle and drove 3 “up and down the coast” from Olympia, Washington to Mexico. Tr. 76-77. 4 5 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 8 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 9 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 10 only if it is not supported by substantial evidence or if it is based on legal error. 11 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 12 defined as being more than a mere scintilla, but less than a preponderance. Id. at 13 1098. Put another way, substantial evidence is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion. Richardson v. 15 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 16 rational interpretation, the Court may not substitute its judgment for that of the 17 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Soc. Sec. Admin., 169 18 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 19 findings, or if conflicting evidence supports a finding of either disability or non- 20 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 21 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 22 substantial evidence will be set aside if the proper legal standards were not applied 23 in weighing the evidence and making the decision. Brawner v. Secretary of Health 24 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 25 26 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 28 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 four, the burden of proof rests upon the claimant to establish a prima facie case of 2 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 3 met once a claimant establishes that a physical or mental impairment prevents the 4 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 5 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 6 to step five, and the burden shifts to the Commissioner to show that the claimant 7 can perform other jobs present in significant numbers in the national economy. 8 Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If 9 a claimant cannot make an adjustment to other work in the national economy, a 10 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 11 ADMINISTRATIVE DECISION 12 On April 28, 2017, the ALJ issued a decision finding Plaintiff was not 13 14 15 16 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the amended alleged disability onset date, June 2, 2013. Tr. 17. At step two, the ALJ determined Plaintiff had the following severe 17 impairments: alcohol dependence, cannabis dependence, amphetamine 18 dependence, cocaine abuse, personality disorder with antisocial avoidant features, 19 mood disorder not otherwise specified, posttraumatic stress disorder, major 20 depressive disorder, chronic obstructive pulmonary disease, tobacco abuse, and 21 osteoarthritis/degenerative disc disease of the spine. Tr. 17-18. 22 At step three, the ALJ found Plaintiff did not have an impairment or 23 combination of impairments that meets or medically equals the severity of one of 24 the listed impairments. Tr. 19. 25 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 26 determined that she could perform light exertion level work with the following 27 limitations: she can lift and/or carry up to 20 pounds occasionally and up to 10 28 pounds frequently; she can stand and/or walk for about six hours in an eight-hour ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 workday with normal breaks; she can sit for up to six hours in an eight-hour 2 workday with normal breaks; she can never climb ladders, ropes, or scaffolds; she 3 can frequently kneel, crouch, and climb ramps or stairs; she can occasionally 4 crawl; she can perform jobs that involve occasional exposure to the following as 5 defined by the Dictionary of Occupational Titles, excess vibration; atmospherics; 6 and workplace hazards such as the operational control of moving machinery, work 7 around unprotected heights, and exposure to hazardous machinery. Additionally, 8 she can perform jobs that involve work that is limited to uncomplicated/routine 9 tasks and some detailed tasks, as defined by a Reasoning Level no greater than 10 11 three. Tr. 20. At step four, the ALJ determined Plaintiff was capable of performing past 12 relevant work as a bar waitress, hostess, informal waitress, and fountain server. 13 The ALJ determined that this work did not require the performance of work-related 14 activities precluded by Plaintiff’s residual functional capacity. Tr. 39. ISSUES 15 16 The question presented is whether substantial evidence supports the ALJ’s 17 decision denying benefits and, if so, whether that decision is based on proper legal 18 standards. Plaintiff contends the ALJ erred by failing to conduct a proper step four 19 analysis. ECF No. 14 at 4-14. DISCUSSION1 20 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 A. Step Four 2 Plaintiff asserts that the ALJ’s step four finding is unsupported by 3 substantial evidence. A claimant who is found capable of performing her past 4 relevant work at the fourth step of the sequential evaluation process will be found 5 not disabled. SSR 82-62. The claimant has the burden of proving he or she can no 6 longer perform past relevant work. 20 C.F.R. §§ 404.1512(a), 416.912(a), 7 404.1520(f), 416.920(f); Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). 8 In determining whether the claimant has the RFC to perform past relevant 9 work, the ALJ must articulate whether the evidence in the record supports: (1) a 10 finding of fact as to the individual’s RFC; (2) a finding of fact as to the physical 11 and mental demands of the past job/occupation; and (3) a finding of fact that the 12 individual’s RFC would permit a return to her past job or occupation. 20 C.F.R. §§ 13 404.1520(f), 416.920(f). To make this determination, the ALJ must make the 14 following specific findings of fact: (1) a finding of fact as to the individual’s RFC; 15 (2) a finding of fact as to the physical and mental demands of the past 16 job/occupation; and (3) a finding of fact that the individual’s RFC would permit a 17 return to her past job or occupation. SSR 82-62. The claimant must be able to 18 perform the actual functional demands and job duties of a particular past relevant 19 job or the functional demands and job duties of the occupation as generally 20 required by employers throughout the national economy. Pinto, 249 F.3d at 847. 21 Social Security regulations classify work by physical exertion requirements and 22 skill requirements. 20 C.F.R. §§ 416.967, 416.968. Finding that Plaintiff’s RFC Permits a Return to Past Work 23 1. 24 First, Plaintiff asserts that the ALJ improperly determined that Plaintiff was 25 capable of returning to her past work because the vocational expert’s testimony 26 failed to support such a finding. ECF No. 14 at 7. Although the burden of proof 27 lies with the claimant at step four, the ALJ still has a duty to make the requisite 28 factual findings to support his conclusion. SSR 82–62; Pinto, 249 F.3d at 844. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 Here, the ALJ determined that Plaintiff has the RFC to perform light 2 exertional work with several limitations, including the limitation to stand and/or 3 walk for about six hours in an eight-hour workday with normal breaks. Tr. 20. 4 Based on the vocational expert’s testimony, the ALJ found Plaintiff capable of 5 performing her past relevant work as a bar waitress, hostess, informal waitress, and 6 fountain server, as actually and generally performed. Tr. 39. The ALJ noted in his 7 decision that the vocational expert testified a person limited to standing and 8 walking for about six hours, but not strictly limited to six hours in an eight-hour 9 workday, would be capable of performing Plaintiff’s past work. Tr. 39. For the 10 reasons discussed below, the Court does not agree that this specific finding was 11 made on the record. 12 During the administrative hearing, the ALJ provided the vocational expert, 13 Mr. Thomas Polsin, with a hypothetical that mirrored Plaintiff’s RFC, including 14 the limitation that Plaintiff was only able to “stand/walk about six hours” in an 15 eight-hour workday with normal breaks. Tr. 89. The ALJ asked the vocational 16 expert if a person with Plaintiff’s RFC could perform any of Plaintiff’s past work, 17 and the vocational expert responded that such an individual should be able to 18 perform the duties required of Plaintiff’s past work as a bar waitress, a hostess, an 19 informal waitress, and a fountain server. Tr. 90. When asked if an individual 20 could perform these jobs if limited to standing for four hours a day, the vocational 21 expert testified “these jobs do require someone to be on his or her feet for the bulk 22 of an eight-hour work shift.” Tr. 91. 23 Plaintiff’s counsel then questioned the vocational expert and asked, in his 24 experience, how many waitress positions actually exist in the economy where an 25 individual is allowed to be seated for two hours out of their eight-hour shift. Tr. 26 93. The vocational expert replied that there were not many such jobs, and stated, 27 “If I misunderstood the hypothetical, I – I thought the Judge said at least six hours. 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 If we are limited to six hours and that is firm, then all of the past work would be 2 eliminated.” Tr. 94. The vocational expert further testified, 3 4 5 6 7 8 9 10 11 “[I]f we are firm about six hours as a practical matter, standing and walking, that person could not effectively do that job. But as I understand the hypothetical, generally speaking, in these proceedings that – and – and if I misunderstood, I apologize, but standing and walking at least six hours out of an eight-hour shift that is consistent with light work, typically as long as the person is not firmly limited to six hours only of standing and walking. And that is known as a practical matter and that is based on my experience.” Tr. 95. The ALJ sought additional clarification by asking, “So if the hypothetical 12 says stand/walk with normal breaks for a total of about six hours in an eight-hour 13 workday, sit with normal breaks for a total of more than six hours on a sustained 14 basis in an eight-hour workday, does that fit the definition of performing these 15 jobs?” Tr. 95. The vocational expert sought further clarification, asking, “…but 16 can stand and walk six hours?” The ALJ responded, “Well – or six hours or more 17 or about six hours,” to which the vocational expert responded, “Six hours, well 18 certainly that would fall within the definition of light work, and it would not 19 eliminate the jobs that I noted.” Tr. 95-96. The ALJ continued his questioning on 20 this subject by asking the vocational expert, “[I]f the person was actually limited to 21 standing no more than six hours per day, then the light work would be eliminated 22 because the jobs generally, as performed, require more than six hours per day in 23 the eight-hour workday?” Tr. 97. The vocational expert confirmed, stating, “That 24 is correct. Those particular jobs would be eliminated.” Tr. 97. 25 Plaintiff’s counsel then asked the vocational expert, “So if a medical doctor 26 had opined that [Plaintiff] was limited to standing and walking about six hours in 27 an eight-hour workday, you would say that she would not be able to return to any 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 of her past relevant work.” Tr. 97. The vocational expert responded, “Well that’s 2 a little bit vague, Counselor. I mean, I – I would have to go to that doctor and find 3 out, okay, what exactly are you saying, because if – if it is – if that’s it, if six hours 4 is it, yes, those jobs would be eliminated, but that’s a little bit too vague to – to 5 make it – take it for her to stand on, but on that basis, yes, likely eliminated.” Tr. 6 97-98. 7 Plaintiff argues that because the ALJ’s RFC findings do not specify that 8 Plaintiff is capable of standing and/or walking for more than six hours, the 9 vocational expert’s testimony does not support an ability to perform her past 10 relevant work, and therefore the ALJ’s step four finding is unsupported by 11 substantial evidence. ECF No. 14 at 7. Defendant argues that the vocational 12 expert testified a person limited to standing and walking for about six hours in an 13 eight-hour workday, but not strictly limited to standing and walking for only six 14 hours, would be capable of performing Plaintiff’s past work. ECF No. 15 at 17 15 (citing Tr. 39-40, 88-90, 94-97). Defendant contends that because the hypothetical 16 the ALJ posed to the vocational expert contained all of the limitations that the ALJ 17 found credible and supported by substantial evidence in the record, it was proper 18 for the ALJ to rely on the vocational expert’s response. ECF No. 15 at 15 (citing 19 Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005)). 20 While the Court agrees with Defendant that the ALJ’s hypothetical to the 21 vocational expert contained all of the limitations that the ALJ found credible and 22 supported, the vocational expert’s testimony was not clear as to whether an 23 individual limited to standing and walking for about six hours would be capable of 24 performing Plaintiff’s past work. Despite several pages of the hearing transcript 25 devoted to an attempt to clarify this specific issue, it does not appear to the Court 26 that the issue as to whether an individual limited to standing and walking for 27 “about six hours” could perform Plaintiff’s past work was sufficiently resolved. 28 While the ALJ clearly testified that a claimant able to stand and walk for six hours ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 or more would be capable of performing Plaintiff’s past work, and that a claimant 2 strictly limited to standing and walking for six hours would not, the vocational 3 expert did not specifically state that a claimant limited to standing and walking for 4 “about six hours” would be capable of performing Plaintiff’s past work. Tr. 95-97. 5 During the vocational expert’s testimony, the ALJ asked “six hours or more or 6 about six hours,” to which the vocational expert responded, “…it would not 7 eliminate the jobs that I noted.” Tr. 95-96. However, it was not clear whether the 8 vocational expert was responding to the ALJ’s question about a limitation to both 9 “six hours or more” and “about six hours,” or simply responding to a limitation of 10 “six hours or more.” Upon further clarification, Plaintiff’s counsel specifically 11 asked the vocational expert for a response as to a limitation of “about six hours,” 12 and the vocational expert responded that it was “a little bit vague.” Tr. 97-98. 13 This is an important distinction, as the ALJ’s RFC only specifies that Plaintiff “can 14 stand and/or walk for about six hours in an eight-hour workday with normal 15 breaks.” Tr. 20. 16 The ALJ has the burden of making findings that accurately reflect whether 17 Plaintiff can perform her past relevant work. Pinto, 249 F.3d at 844-45. 18 According to the facts before this Court, it is not clear whether Plaintiff’s physical 19 restrictions prevent her from continuing her past work as actually or generally 20 performed. Thus, the ALJ’s conclusion regarding jobs Plaintiff could perform and 21 the ultimate non-disability finding were not supported by substantial evidence. 22 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 23 nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 24 2012) (quotation and citation omitted). Here, based on a finding that Plaintiff’s 25 RFC permits a return to her past work, the ALJ determined that Plaintiff was not 26 disabled and thus, did not proceed to a step five analysis where the burden shifts to 27 the Commissioner to show that Plaintiff can perform other jobs present in 28 significant numbers in the national economy. The ALJ’s error is consequential. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 Finding as to Physical/Mental Demands of Plaintiff’s Past Work 1 2. 2 Plaintiff argues that legal error occurred because the ALJ’s decision lacks 3 the required functional assessment for her past work. ECF No. 14 at 8 (citing 4 Sivilay v. Apfel, 143 F.3d 1298 (9th Cir. 1998)). Defendant argues that the 5 evidence demonstrated that the ALJ formulated an extensive RFC assessment and 6 compared that assessment with the requirements of Plaintiff’s past work. ECF No. 7 15 at 17 (citing Tr. 20, 39-40, 87-97). 8 At the second phase of the step four analysis, the ALJ must make findings 9 regarding the physical and mental demands of the claimant’s past relevant work. 10 SSR 82-62. To make the necessary findings, the ALJ must obtain adequate 11 “factual information about those work demands which have a bearing on the 12 medically established limitations.” Id. 13 This matter must be remanded for additional proceedings because the ALJ’s 14 conclusion regarding past jobs Plaintiff could perform and the ultimate non- 15 disability finding were not supported by substantial evidence. See supra. 16 Accordingly, on remand, the ALJ shall also perform the required findings of fact as 17 to the physical and mental demands of Plaintiff’s past jobs. SSR 82-62. Finding as to Plaintiff’s RFC 18 3. 19 Plaintiff also argues that the ALJ’s RFC was unsupported by substantial 20 evidence because it was based upon the findings of the nonexamining state agency 21 physician and some speculative comments about the evidence. ECF No. 14 at 9. 22 At step four of the sequential evaluation, the ALJ must determine the 23 claimant’s RFC. 20 C.F.R. § 416.920(a)(4)(iv). “[T]he ALJ is responsible for 24 translating and incorporating clinical findings into a succinct RFC.” Rounds v. 25 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). “[A]n ALJ’s 26 assessment of a claimant adequately captures restrictions related to concentration, 27 persistence, or pace where the assessment is consistent with restrictions identified 28 in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 Cir. 2008). To the extent the evidence could be interpreted differently, it is the role 2 of the ALJ to resolve conflicts and ambiguity in the evidence. Morgan, 169 F.3d 3 at 599-600. 4 This matter must be remanded for additional proceedings because the ALJ’s 5 conclusion regarding past jobs Plaintiff could perform and the ultimate non- 6 disability finding were not supported by substantial evidence. See supra. 7 Accordingly, on remand, the ALJ shall also reassess Plaintiff’s RFC, and, if 8 necessary, obtain supplemental testimony from a medical expert with the 9 opportunity to review Plaintiff’s entire medical record, including any additional or 10 supplemental evidence relevant to Plaintiff’s claim for disability benefits. CONCLUSION 11 12 The ALJ’s determination at step four that Plaintiff is capable of performing 13 her past work is not supported by substantial evidence and must be reevaluated. 14 On remand, the ALJ shall perform a renewed step four analysis and reevaluate 15 Plaintiff’s RFC, reassessing the medical and other source opinions, and all other 16 medical evidence of record relevant to Plaintiff’s claim for disability benefits. If 17 necessary, the ALJ shall obtain supplemental testimony from a medical expert with 18 the opportunity to review Plaintiff’s entire medical record, including any additional 19 or supplemental evidence relevant to Plaintiff’s claim for disability benefits. The 20 ALJ shall also perform the required findings of fact as to the physical and mental 21 demands of Plaintiff’s past jobs. If necessary, the ALJ shall obtain supplemental 22 testimony from a vocational expert and take into consideration any other evidence 23 or testimony relevant to Plaintiff’s disability claim. 24 Accordingly, IT IS HEREBY ORDERED: 25 1. 26 27 28 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 2 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 3 4. An application for attorney fees may be filed by separate motion. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 6 the file shall be CLOSED. 7 IT IS SO ORDERED. 8 DATED April 22, 2019. 9 10 11 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14
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