Elvidge v. Colvin (previously Astrue), No. 2:2012cv00575 - Document 16 (E.D. Wash. 2013)

Court Description: ORDER GRANTING PAINTIFF'S MOTION FOR SUMMARY JUDGMENT; granting pltf's 12 Motion for Summary Judgment; denying dft's 13 Motion for Summary Judgment. This matter is REMANDED to the ALJ. JUDGMENT shall be entered for the Plaintiff. District Court Executive is directed to close the file. Signed by Senior Judge Wm. Fremming Nielsen. (LE, Case Administrator)

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Elvidge v. Colvin (previously Astrue) Doc. 16 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 DANA N. ELVIDGE, 7 -vs- No. Plaintiff, 8 CAROLYN W. COLVIN, Commissioner 1 9 of Social Security, 10 CV-12-575-WFN ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendant. 11 12 Before the Court are cross-Motions for Summary Judgment (ECF Nos. 12 and 13). 13 Attorney Rebecca Coufal represents Plaintiff. Special Assistant United States Attorney 14 Leisa Wolf represents Defendant. The Court has reviewed the administrative record and 15 briefs filed by the parties and is fully informed. JURISDICTION 16 17 Plaintiff protectively applied for disability insurance benefits (DIB) and 18 supplemental security income (SSI) on January 30, 2007, alleging disability beginning on 19 August 31, 1985, due to physical and mental impairments. 2 The application was denied 20 initially and on reconsideration. 21 22 23 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on 24 February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 25 Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant in this suit. No 26 further action need be taken to continue this suit by reason of the last sentence of 42 27 U.S.C. § 405(g). 28 2 Plaintiff no longer claims SSI. See ECF No. 12 at 1 n.1. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 A hearing was held before Administrative Law Judge (ALJ) Gene Duncan on 2 January 28, 2009. The ALJ found that Plaintiff only met the insured status requirements 3 necessary to receive DIB between August 31, 1985 and December 31, 1990. The ALJ 4 concluded that Plaintiff was not disabled during this time period. The Appeals Council 5 denied Plaintiff's request for review and Plaintiff appealed the ALJ's decision to the United 6 States District Court for the Eastern District of Washington. The Court granted Plaintiff's 7 Motion for Summary Judgment and remanded for additional proceedings. (Tr. at 612-36.) 8 A second hearing was held before ALJ Gene Duncan on January 13, 2012. At the 9 hearing, Plaintiff, represented by counsel, testified as did Scott Elvidge, Plaintiff's 10 husband, Dr. Charles Wiseman, a medical expert, Kent Layton, Ph.D., a medical expert, 11 and Jinnie Lawson, a vocational expert (VE). The ALJ again concluded that Plaintiff was 12 not disabled between August 31, 1985 and December 31, 1990. The Appeals Council 13 denied Plaintiff's request for review making the ALJ's decision the final decision of the 14 Commissioner. The instant matter is before this Court pursuant to 42 U.S.C. § 405(g). FACTS 15 16 17 The facts of the case are set forth in detail in the transcript of the proceedings and are briefly summarized here. 18 At the time of the second hearing, Plaintiff was 47 years old. (Tr. at 524.) In high 19 school, Plaintiff received vocational training as a dental assistant. (Tr. at 513.) Plaintiff 20 worked in a dental office for a period of time in the early to mid-1980s. (Tr. at 34-35). 21 Around this time, Plaintiff states that she suffered from migraine headaches, an 22 inflammatory disease, and fibromyalgia. (Tr. at 35.) 23 She stopped working at the dental office in 1985 because her first husband died 24 unexpectedly. (Tr. at 526.) At the time of her husband's death, Plaintiff was pregnant with 25 the couple's child. (Tr. at 35.) After the birth of the child, Plaintiff began experiencing flu- 26 ike episodes with symptoms including fever, severe congestion, sore throat, and body 27 aches. (Tr. at 527.) These symptoms would diminish in two to three weeks but would 28 reoccur every six weeks or so. (Tr. at 528.) Plaintiff's reoccurring flu symptoms have ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 2 1 never gone away, but the duration and intensity of the symptoms have diminished over 2 time. (Tr. at 528.) 3 Plaintiff complains of intense migraine headaches that can last for a day or longer. 4 (Tr. at 520.) Plaintiff has experienced migraines since childhood. (Tr. at 525.) Plaintiff 5 has used a "plethora" of medications to treat her migraines, but she has not responded well 6 to any of them. (Tr. at 521-23.) While having a migraine, Plaintiff cannot read or "stand 7 any amount of light" without becoming nauseous. (Tr. at 523.) 8 At the time of the hearing, Plaintiff reported spending much of her time at home. 9 (Tr. at 513.) From home, she works as an employee for her husband's business, but does 10 little more than answer the phone, send a fax, look up an address or telephone number 11 once or twice a week, and provide "moral support." 12 having difficulty with even light household chores. (Tr. at 515). Plaintiff also has difficulty 13 sleeping. (Tr. at 517-18.) Plaintiff enjoys art and can occasionally paint for short periods 14 of time. (Tr. at 517.) (Tr. at 513, 565.) Plaintiff reports SEQUENTIAL PROCESS 15 16 The Commissioner has established a five-step sequential evaluation process for 17 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see 18 Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to disability 20 benefits. 21 once a claimant establishes that a physical or mental impairment prevents him from 22 engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a 23 claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show that (1) the claimant can make an adjustment to other 25 work; and (2) specific jobs exist in the national economy which claimant can perform. 26 Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th 2004). If a claimant 27 cannot make an adjustment to other work in the national economy, a finding of "disabled" 28 is made. 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This burden is met ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 3 1 2 3 ADMINISTRATIVE DECISION Preliminarily, the ALJ noted that Plaintiff was only eligible for DIB between August 31, 1985 and December 31, 1990. 4 At step one, the ALJ determined that Plaintiff engaged is substantial gainful activity 5 since March 2010 when she started doing secretarial work for her husband's business. Prior 6 to March 2010, however, the ALJ found that Plaintiff did not engage in substantial gainful 7 activity for a continuous 12-month period. 8 At step two, the ALJ found that Plaintiff had the following severe impairment: 9 Headaches. The ALJ concluded that Plaintiff's complaints of fibromyalgia and chronic 10 fatigue syndrome were not medically determinable impairments and not severe. 11 At step three, the ALJ found that Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled any of the listed impairments 13 described at 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 14 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). 15 At step four, the ALJ found that Plaintiff had the residual functional capacity (RFC) 16 to perform sedentary work subject to numerous limitations. The ALJ found that claimant 17 had no past relevant work. 18 At step five, the ALJ concluded that, given Plaintiff's age, education, work 19 experience, and RFC, there were jobs that existed in significant numbers in the national 20 economy that Plaintiff could perform, including work as a document preparer, telephone 21 quotation clerk, and cashier. STANDARD OF REVIEW 22 23 24 25 26 27 28 In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. [Tackett, 180 F.3d at 1097]. Substantial evidence is defined as being more than a mere scintilla, but ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 4 1 2 3 4 5 6 7 8 less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 9 10 It is the role of the trier of fact, not this court, to resolve conflicts in evidence. 11 Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, 12 the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d 13 at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision 14 supported by substantial evidence will still be set aside if the ALJ did not apply the proper 15 legal standards in weighing the evidence and making the decision. Brawner v. Secretary 16 of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 17 exists to support the administrative findings, or if conflicting evidence exists that will 18 support a finding of either disability or non-disability, the Commissioner's determination is 19 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 20 ISSUES 21 1. Did the ALJ err in assessing Plaintiff's credibility? 22 2. Did the ALJ err in assessing the testimony of lay witnesses? 23 3. Did the ALJ err by posing an incomplete hypothetical to the VE? 24 DISCUSSION 25 1. Did the ALJ err in assessing Plaintiff's credibility? 26 Plaintiff argues that the ALJ erred by rejecting Plaintiff's testimony about the 27 severity of her symptoms without providing specific, clear, and convincing reasons for 28 doing so. ECF No. 12 at 16. The Court declines to reach the merits of this argument ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 5 1 because this Court previously concluded that the ALJ did not err in assessing Plaintiff's 2 credibility. 3 Under the law of the case doctrine, a court will generally refuse to reconsider an 4 issue that has already been decided by the same court or a higher court in the same case. 5 Jefferies v. Wood, 114 F.3d 1484, 1488-89 (9th Cir. 1997); see also Chavez v. Bowen, 844 6 F.2d 691, 693 (9th Cir. 1988) (principles of res judicata apply to administrative decisions, 7 including social security appeals). Despite the law of the case doctrine, this Court may 8 reconsider a previously decided issue if "(1) the decision is clearly erroneous and its 9 enforcement would work a manifest injustice, (2) intervening controlling authority makes 10 reconsideration appropriate, or (3) substantially different evidence was adduced at a 11 subsequent trial." Jefferies, 114 F.3d at 1489 (footnote omitted) (internal quotation marks 12 omitted). 13 Plaintiff fails to assert an exception to the law of the case doctrine that would 14 require the Court to reconsider an issue previously decided in this case. On the first 15 appeal, Plaintiff made an identical argument, i.e., the ALJ "erred in not finding [Plaintiff's] 16 testimony credible." (CV-09-00338-CI, ECF No. 15 at 22.) 17 however, and upheld the ALJ's credibility assessment finding it "based on clear 18 and convincing reasons supported by substantial evidence." (Tr. at 629.) In particular, the 19 Court found that the ALJ reasonably "infer[red] [that] Plaintiff's sporadic doctor 20 visits indicate[d] that her symptoms were not as disabling as alleged." (Tr. at 628-29.) 21 On remand, the ALJ again found Plaintiff not credible to the extent that Plaintiff's 22 alleged limitations contradicted the ALJ's RFC determination. (Tr. at 427.) The ALJ 23 relied on the fact that this Court had affirmed his previous credibility determination. 24 (Tr. at 427.) Plaintiff provides no reason why the ALJ should have reevaluated Plaintiff's 25 credibility in the second administrative hearing after this Court had found the assessment 26 free of error and supported by substantial evidence. 27 Court's previous opinion was not in error; the ALJ did not err in assessing Plaintiff's 28 credibility. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 6 This Court disagreed, The ALJ's reliance on this 1 2. Did the ALJ err in assessing the testimony of lay witnesses? 2 Plaintiff next argues that the ALJ erred in assessing the testimony of lay witnesses, 3 particularly the testimony of her husband. The lay witness testimony in this case consists 4 of the written statements of Plaintiff's mother, father, aunt, and uncle, and the testimony of 5 Plaintiff's husband at the second administrative hearing. In the ALJ's first decision, the 6 ALJ gave the written statements little weight because (1) the close family relationship 7 between Plaintiff and the witnesses, (2) the statements were made well after the expiration 8 of Plaintiff's insured status, and (3) the statements were not consistent with Plaintiff's 9 activities and the medical evidence. (Tr. at 16.) On appeal, this Court concluded that the 10 ALJ did not give germane reasons for rejecting the lay witness testimony and ordered the 11 ALJ to "reconsider the witness statements on remand." (Tr. at 633.) 12 13 14 a. Statements of Plaintiff's mother and father Carol Payne, Plaintiff's mother, and Frank Payne, Plaintiff's father, both submitted written statements in support of Plaintiff's claim for DIB. 15 In his written statement, Mr. Payne notes that Plaintiff was often sick as a child, 16 suffering from "aches and pains," "headaches," "flu-like symptoms," "muscle pain," and 17 "fatigue." (Tr. at 219.) Mr. Payne lists several doctors from whom Plaintiff sought 18 treatment. (Tr. at 219-20.) Mr. Payne reports that Plaintiff was unable to return to work 19 after the birth of her first child, even though she wanted to. (Tr. at 220.) After discussing 20 Plaintiff's more recent debilitating ailments and medical treatment, Mr. Payne opines 21 Plaintiff's "disabling bouts" make it so she is unable to "give her attention to work or other 22 activities on a continuous basis" or to "hold a regular job." (Tr. at 220.) 23 Mrs. Payne also reports how Plaintiff suffered from numerous ailments as a child 24 that prevented Plaintiff from participating in normal childhood activities. (Tr. at 221.) 25 Mrs. Payne describes additional ailments suffered by Plaintiff as she grew up and some of 26 the medical treatment Plaintiff received. 27 personal observations of Plaintiff suffering from fibromyalgia, migraine headaches, 28 recurrent flu episodes, mononucleosis, hepatitis, and breast cancer. (Tr. at 222.) Mrs. (Tr. at 221-22.) ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 7 Mrs. Payne recounts her 1 Payne concludes that Plaintiff has a "weak and deficient immune system" and notes that 2 Plaintiff is often disabled, "bed-ridden," and needs help with the "basic routines of life." 3 (Tr. at 222.) 4 In the ALJ's second decision, the ALJ summarized and reconsidered these 5 statements, but again gave them little weight. The ALJ, quoting this Court's earlier 6 opinion, reasoned that the statements of Mr. and Mrs. Payne "simply cannot establish 7 disability without the support of underlying medical evidence." (Tr. at 429.) The ALJ 8 went on to conclude that, "[b]ecause the objective medical evidence does not establish 9 chronic fatigue syndrome, fibromyalgia, or any other impairment except for headaches 10 during the time period relevant to the decision, the [Plaintiff's] parents' statements that 11 those conditions existed at the time are essentially moot." (Tr. at 429.) 12 It is true that lay witness testimony cannot establish the existence of medically 13 determinable impairments. But lay witness testimony is "competent evidence" as to "how 14 an impairment affects [a claimant's] ability to work." Stout v. Comm'r, Soc. Sec. Admin., 15 454 F.3d 1050 (9th Cir. 2006); 20 C.F.R. § 404.1513(d)(4); see also Dodrill v. Shalala, 12 16 F.3d 915, 918-19 (9th Cir. 1993) ("[F]riends and family members in a position to observe a 17 claimant's symptoms and daily activities are competent to testify as to her condition."). 18 Simply stating that the lay witness testimony does not objectively establish a medically 19 determinable impairment is not a germane reason for rejecting lay witness testimony that 20 concerns a claimant's ability to work. See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 21 2009) (stating that the ALJ "should not have discredited [a lay witness's] testimony on the 22 basis of its relevance or irrelevance to medical conclusions."). The ALJ did not give 23 germane reasons for rejecting the parents' opinions regarding Plaintiff's ability to work. 24 On remand, the ALJ should credit Plaintiff's parents' testimony or give germane reasons 25 for rejecting it. 26 27 28 b. Statements of Plaintiff's aunt and uncle Bill Payne, Plaintiff's uncle, and Judith Ott-Bryant, Plaintiff's aunt, also submitted written statements in support of Plaintiff's claim for DIB. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 8 1 Plaintiff's uncle's statement primarily addresses his own health issues "surrounding 2 [his] afflictions of fibromyalgia and osteoarthritis." (Tr. at 223.) He also mentions that 3 other family members, including Plaintiff, suffer from "similar afflictions." (Tr. at 223.) 4 Likewise, Ms. Ott-Bryant describes her own ailments (which bear some resemblance to 5 Plaintiff's) and suggests that her family has a hereditary "inflammatory and autoimmune 6 disease dysfunctional condition." (Tr. at 224.) Ms. Ott-Bryant notes that "these chronic 7 conditions began to affect [Plaintiff] from a much earlier age." (Tr. at 224.) 8 In the ALJ's second decision, the ALJ summarized and reconsidered these 9 statements and again assigned the statements little weight. The ALJ reasoned that the 10 statements made by Plaintiff's aunt and uncle deserved little weight because they 11 "primarily discuss their own impairments, are not provably based on observations of 12 behavior during the relevant time period, and do not expand on the amount of contact they 13 had with the [Plaintiff]." (Tr. at 428.) The Court agrees that these statements provide no 14 information on Plaintiff's ability to work during the pertinent time period. The ALJ gave 15 germane reasons for giving little weight to the opinions of Plaintiff's aunt and uncle. 16 c. Testimony of Scott Elvidge 17 Scott Elvidge, Plaintiff's husband, testified at the second administrative hearing. (Tr. 18 at 562-79.) Mr. Elvidge married Plaintiff in 1987. Around that time, Mr. Elvidge stated 19 that Plaintiff suffered migraines two to three times a month with each headache lasting "[a] 20 few days at a time." (Tr. at 563.) During these migraines, Plaintiff would vomit and need 21 to lie down in a dark room. (Tr. at 563.) Since 1987, Mr. Elvidge believes that Plaintiff's 22 health problems have "[g]otten worse." (Tr. at 566, 570.) Mr. Elvidge emphasized that 23 when Plaintiff has a migraine she can't perform daily chores or do anything other than lie 24 in bed or on the couch. (Tr. at 577.) Mr. Elvidge testified that Plaintiff is rendered 25 completely incapacitated for two weeks out of every month due to a combination of 26 headaches and flu symptoms. (Tr. at 575.) Although Plaintiff is technically an employee 27 of Mr. Elvidge's company, she spends less than five hours a week actually assisting in 28 business matters. (Tr. at 566.) ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 9 1 In the ALJ's second decision, the ALJ fails to mention or address Mr. Elvidge's 2 testimony. Lay witness testimony "cannot be disregarded without comment." Bruce, 557 3 F.3d at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). Mr. 4 Elvidge's testimony directly addresses Plaintiff's ability to work during the relevant time 5 period. If the ALJ had found Mr. Elvidge's testimony credible, it would not be a stretch to 6 find that Plaintiff's impairments prohibited her from working. Significantly, Defendant 7 fails to respond to Plaintiff's argument that the ALJ erred by not considering Mr. Elvidge's 8 testimony. On remand, the ALJ must credit Mr. Elvidge's testimony or provide germane 9 reasons for rejecting it. 10 3. Did the ALJ err by posing an incomplete hypothetical to the VE? 11 Plaintiff argues that the ALJ's hypothetical question to the VE did not include all of 12 Plaintiff's limitations. The Court agrees and finds that the ALJ's hypothetical question was 13 flawed in two respects. 14 First, the ALJ's hypothetical question did not account for all the limitations opined 15 by the medical experts in this case. "Hypothetical questions posed to the [VE] must set out 16 all the limitations and restrictions of the particular claimant." Embrey v. Bowen, 849 F.2d 17 418, 422 (9th Cir. 1988). An ALJ is not required to present the VE with those limitations 18 he finds to be incredible and unsupported by the evidence. Osenbrock v. Apfel, 240 F.3d 19 1157, 1165-66 (9th Cir. 2001). 20 The medical evidence in this case concerning the relevant time period is sparse. In 21 developing his hypothetical questions to the VE, the ALJ appeared to rely exclusively on 22 the testimony of the medical experts. The ALJ, however, took liberty in characterizing 23 certain limitations opined by the medical experts. For example, Dr. Wiseman testified that 24 Plaintiff could "maybe sit for 30 minutes, but she might have to get up and move around." 25 (Tr. at 584.) But in the ALJ's hypothetical to the VE, he described a person who was able 26 to "sit for eight hours a day," but who would need "to stand and stretch for one to three 27 minutes every hour that she does not have a break." (Tr. at 596.) 28 mischaracterization of the medical expert's opinion and a limitation unsupported by ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 10 This is a 1 substantial evidence. An ALJ may not "substitute his own layman's opinion for the 2 findings and opinion of a physician." Gonzalez Perez v. Secretary of Health & Human 3 Servs., 812 F.2d 747, 749 (1st Cir. 1987). The ALJ also failed to include additional 4 limitations opined by Dr. Wiseman including the need for Plaintiff to work away from 5 vibrations and in a quiet location, Tr. at 584, and Plaintiff's "need to lie down and avoid 6 bright lights" when suffering from a migraine, Tr. at 585. There is no indication that the 7 ALJ found these limitations incredible or unsupported by the evidence; therefore, the ALJ 8 erred in excluding them from his hypothetical question. 9 Second, the ALJ's hypothetical question did not account for the limitations opined 10 by Plaintiff's husband and parents. An ALJ poses an incomplete hypothetical when the 11 ALJ does not include limitations recounted by a lay witness who's testimony the ALJ did 12 not properly consider. See Bruce, 557 F.3d at 1116 (ALJ erred by failing to incorporate 13 into hypothetical question limitations recounted by claimant's wife (whom the ALJ found 14 "generally credible")); Nguyen, 100 F.3d at 1467 (holding that an ALJ errs by "failing to 15 include in the hypothetical the physical manifestations that were described by the 16 witnesses or expressly rejecting the testimony for legitimate reasons."). 17 Mr. Elvidge opined that, during the relevant period, Plaintiff had headaches two to 18 three times a month with each headache lasting "[a] few days at a time." (Tr. at 563.) 19 During these episodes, Plaintiff was essentially bed-ridden. (Tr. at 563.) 20 parents' statements are consistent with Mr. Elvidge's testimony. Notwithstanding Mr. 21 Elvidge's testimony, the ALJ included the following limitation in his hypothetical 22 question: Plaintiff "would be away from . . . her job and not working two hours per week. 23 Still would be on the premises but she would not be working two hours a week." (Tr. at 24 596.) It is unclear how the ALJ came up with this limitation; neither Dr. Layton nor Dr. 25 Wiseman stated that Plaintiff would be unable to work for two hours a week. In fact, Dr. 26 Layton opined that when Plaintiff had a migraine "she would not be able to work." (Tr. at 27 533.) The limitations recounted by Mr. Elvidge would result in Plaintiff being absent from 28 work at least several days each month. When Plaintiff's attorney asked the VE whether ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 11 Plaintiff's 1 Plaintiff could perform any type of work if she missed one day of work per week or even a 2 half day per week, the VE responded that Plaintiff would not be able to work. (Tr. at 601.) 3 The ALJ's hypothetical question to the VE did not accurately reflect Plaintiff's 4 limitations established by the testimony of the medical experts and lay witnesses. Thus, the 5 ALJ's determination at step five that Plaintiff could perform other work existing in the 6 national economy does not rest on substantial evidence. REMEDY 7 8 The decision whether to remand for further proceedings or reverse and award 9 benefits is within the discretion of the district court. McAlliser v. Sullivan, 888 F.2d 599, 10 603 (9th Cir. 1989). An immediate award of benefits is appropriate where "no useful 11 purpose would be served by further administrative proceedings, or where the record has 12 been thoroughly developed," Varney v. Secretary of Health & Human Servs., 859 F.2d 13 1396, 1399 (9th Cir. 1988), or when the delay caused by remand would be "unduly 14 burdensome," Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990). This policy is based 15 on the "need to expedite disability claims." Varney, 859 F.2d at 1401. But where there are 16 outstanding issues that must be resolved before a determination can be made, and it is not 17 clear from the record that the ALJ would be required to find a claimant disabled if all the 18 evidence were properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 19 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 20 2000). 21 In this case, the Court finds that the record is unclear as to whether the ALJ would 22 be required to find Plaintiff disabled if all the lay witness testimony was properly 23 evaluated and the VE was presented with a hypothetical question that includes all the 24 limitations that the ALJ finds credible and supported by substantial evidence. 25 conceivable that, if the ALJ gives germane reasons for rejecting the statements of 26 Plaintiff's mother and father and the testimony of Plaintiff's husband, then the ALJ would 27 have a proper basis to conclude that Plaintiff is not disabled. Although this is the second 28 remand of this case, and further proceedings would no doubt be inconvenient, the Court ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 12 It is 1 does not believe that further proceedings would not "unduly burdensome." Plaintiff's 2 potential recovery is limited to a fixed amount of DIB earned over 20 years ago. 3 Furthermore, Plaintiff's condition does not appear to be significantly worsening and her 4 financial situation does not appear to be dire. 5 appropriate remedy in this case is remand. CONCLUSION 6 Having reviewed the record and the ALJ's findings, the Court concludes the ALJ's 7 8 decision is based on legal error and unsupported by substantial evidence. Accordingly, IT IS ORDERED that: 9 1. Plaintiff's Motion for Summary Judgment, filed April 22, 2013, ECF No. 12, is 10 11 GRANTED. 2. Defendant's Motion for Summary Judgment, filed June 3, 2013, ECF No. 13, is 12 13 Therefore, the Court finds that the DENIED. 14 3. This matter is REMANDED to the ALJ. On remand the ALJ shall reconsider 15 the statements of Plaintiff's parents and evaluate the testimony of Plaintiff's husband. 16 After evaluating the lay witness testimony, the ALJ must pose a hypothetical question to 17 the VE that includes all of Plaintiff's limitations and restrictions that the ALJ finds credible 18 and supported by substantial evidence. 19 4. JUDGMENT shall be entered for the Plaintiff. 20 The District Court Executive is directed to file this Order and provide copies to 21 counsel and to CLOSE the file. DATED this 2nd day of December, 2013. 22 23 24 25 26 11-22-13 s/ Wm. Fremming Nielsen WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE 27 28 ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - 13

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