Bock v. Colvin

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
GENE C. BOCK, SR., )
)
Plaintiff, )
)
vs. )
)
CAROLYN W. COLVIN, acting Commissioner )
of Social Security, )
) No. 3:13-cv-0109-HRH
Defendant. )
__________________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II of
the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff has filed a motion for summary
judgment, to which defendant has responded. Oral argument was not requested and is not1 2
deemed necessary.
Procedural Background
Plaintiff is Gene C. Bock. Defendant is Carolyn W. Colvin, acting Commissioner of
Social Security.
Docket No. 11.1
Docket No. 17.2
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Plaintiff filed an application for disability benefits under Title II of the Social Security
Act, alleging that he became disabled on October 8, 2011. Plaintiff alleged that he was disabled
because of a lacerated nerve, radial artery, and tendons on his right wrist. Plaintiff’s application
was denied initially and upon reconsideration. After a hearing on September 4, 2012, an
administrative law judge (ALJ) denied plaintiff’s claim. On April 16, 2013, the Appeals Council
denied plaintiff’s request for review, thereby making the ALJ’s October 22, 2012 decision the
final decision of the Commissioner. On June 19, 2013, plaintiff commenced this action in which
he asks the court to find that he is entitled to disability benefits.
General Factual Background
Plaintiff was born on January 5, 1954. He was 58 years old at the time of the hearing.
Plaintiff has a high school education plus has taken some technical courses. Plaintiff is married
and lives with his wife. Plaintiff is right-hand dominant. Plaintiff’s past relevant work was as
a television/appliance salesman and repairman and a computer repair technician.
On October 8, 2011, plaintiff was injured while working on the roof of an airplane
hangar he was building. “[H]e slipped and fell and he was trying to keep from falling 16 feet
to the ground and he was gripping onto the sheet metal and it tore the back side of his hand
on the radial side.”3
Admin. Rec. at 207.3
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ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the Social
Security Act through December 31, 2016.”4
The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.5
Admin. Rec. at 25.4
The five steps are as follows:5
Step one: Is the claimant presently engaged in substantial gainful
activity? If so, the claimant is not disabled. If not, proceed to step
two.
Step two: Is the claimant’s alleged impairment sufficiently severe
to limit ... h[is] ability to work? If so, proceed to step three. If not,
the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R., pt.
404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed
to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... h[is] past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... h[im] to
adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The plaintiff has the
burden of proof at steps one through four. Valentine v. Comm’r Social Sec. Admin., 574 F.3d
685, 689 (9th Cir. 2009). The Commissioner has the burden of proof at step five. Id.
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity
since October 8, 2011, the alleged onset date....” At step two, the ALJ found that plaintiff “has6
the following severe impairments: right wrist soft tissue injury; status post right wrist tendon
and nerve reparative surgery; [and] rheumatoid arthritis.”7
At step three, the ALJ found that plaintiff did “not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1....” The ALJ specifically considered whether plaintiff8
met Listings 1.08 (soft tissue injury) and 14.09 (inflammatory arthritis).9
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The
ALJ found that plaintiff
has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except [he]: is limited to jobs that
would allow him to alternate between sitting and standing
positions for 15 minutes once an hour throughout the day; cannot
manipulate objects smaller than the size of a paperclip with the left
hand; and must avoid concentrated exposure to noise.[ ]10
Admin. Rec. at 25.6
Admin. Rec. at 25.7
Admin. Rec. at 27.8
Admin. Rec. at 27.9
Admin. Rec. at 28.10
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The ALJ found that plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms” but that plaintiff’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible to the
extent they are inconsistent with the above residual functional capacity assessment.” The ALJ11
found plaintiff’s statements less than credible because they were inconsistent at times and
because the limitations plaintiff claimed were inconsistent with the medical evidence. The12
ALJ found “the fact that [plaintiff] felt capable of operating an airplane in August of 2012
despite his alleged disabling impairments undercuts the credibility of his allegations....”13
The ALJ also found some of plaintiff’s statements about his daily activities inconsistent
with his claim of total disability. The ALJ noted that plaintiff “testified that he is able to drive
for 1/2 hour,[ ] which ... requires enough grip strength to open the car door, manipulate the14
car keys in order to start the vehicle, and turn the steering wheel.” The ALJ also noted that15
Admin. Rec. at 29.11
Admin. Rec. at 29-30.12
Admin. Rec. at 31. On August 3, 2012, plaintiff “present[ed] to” Dr. Hall to “have13
paperwork done for FAA & disability.” Admin. Rec. at 248. Plaintiff began seeing Rod A.
Hall, D.O., at Health North Family Clinic in February 2010. Admin. Rec. at 254.
At the hearing, plaintiff testified that he could drive “at least about a half an hour and14
roughly 20 miles.” Admin. Rec. at 48.
Admin. Rec. at 31.15
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plaintiff “testified that he drinks several cups of coffee a day,[ ] which ... involves a degree of16
fine manipulation and grip strength in order to grasp the cup handle and lift it to one’s
mouth.”17
The ALJ found that plaintiff’s “treatment seeking behavior with respect to his lacerated
right wrist is not consistent with what one might expect to see in a person experiencing a
disabling physical impairment.” The ALJ found “it more likely than not that [plaintiff’s] lone18
visit with Ms. Gaston[ ] suggests that the function of [plaintiff’s] right wrist is not as limited19
as he alleges....”20
The ALJ also found plaintiff’s symptom statements less than credible because his
arthritis symptoms “are well controlled by medication.” The ALJ noted that plaintiff’s21
statement that he continued to take Tramadol occasionally for pain was inconsistent with the22
In describing his typical day at the hearing, plaintiff testified that he drank a couple16
of cups of coffee each morning while reading the news on the internet. Admin. Rec. at 58.
Admin. Rec. at 31.17
Admin. Rec. at 31.18
Plaintiff saw Teri Gaston, an occupational therapist, once on November 2, 2011,19
although she recommended that plaintiff “be seen 3 times per week for 6 weeks.” Admin. Rec.
at 210-211.
Admin. Rec. at 31.20
Admin. Rec. at 31.21
At the hearing, plaintiff testified that he takes Tramadol for pain “but I try to keep it22
(continued...)
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medical records because plaintiff told Dr. Hall that he had stopped taking Tramadol because
of the side effects. The ALJ also noted that plaintiff never asked Dr. Hall for a different pain23
medication, which she found “undercuts [his] allegations ... because it suggests that [his]
alleged debilitating pain is not as continuous and limiting as he alleges.”24
The ALJ found that “[s]ome of [plaintiff’s] statements suggest that he has the tendency
to overstate the persistence and limiting effects of his symptoms.” As an example, the ALJ25
noted that in his December 7, 2011 Pain Questionnaire, plaintiff stated “that the pain in his26
right hand, forearm and wrist was ‘always there’ and occurs ‘all the time.’” The ALJ27
explained that if plaintiff had constant pain “[o]ne would expect to see notes reflecting the
complaints of right hand pain in [his] medical records. Yet, there is no mention in Dr. Hall’s
treatment records that [plaintiff] ever complained of pain in his right hand, forearm, or wrist.”28
(...continued)22
down because I don’t care for the way the narcotics make me feel.” Admin. Rec. at 51-52.
Admin. Rec. at 32. On February 22, 2011, plaintiff told Dr. Hall. that the “tramadol has23
worked ok. Only used it a couple times. It makes him tired but not ‘loopy.’” Admin. Rec. at
252.
Admin. Rec. at 32.24
Admin. Rec. at 32.25
Admin. Rec. at 176-178.26
Admin. Rec. at 32.27
Admin. Rec. at 32.28
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The ALJ also noted that plaintiff testified that he saw “Dr. Hall once every other week, or
approximately twice a month” but that Dr. Hall’s treatment records “show that [plaintiff]
appeared for 5 office visits over the course of 6 months[.]” The ALJ explained that “[b]ecause29
the medical evidence shows that [plaintiff] overstated the frequency that he goes to the doctor,
I find it likely that [he] also overstated the limiting effects of his impairments.” The ALJ30
found that “Dr. Hall’s medical opinion that [plaintiff’s] prognosis was ‘good’ in August 2012
also tends to show that [plaintiff] overstates the effect that his arthritis has on his ability to
perform work activities.”31
The ALJ considered Dr. Hall’s August 3, 2012 opinion but gave little weight to this32
opinion because the sole purpose of plaintiff’s visit that day “was to have Dr. Hall complete
Admin. Rec. at 32.29
Admin. Rec. at 32.30
Admin. Rec. at 32.31
Dr. Hall opined that plaintiff could walk 1/2 block; continuously sit for more than 232
hours and sit for at least six hours in an 8-hour work day; stand continuously for 30 minutes;
stand/walk for less than 2 hours in an 8-hour work day; needs to shift at will from sitting and
standing; needs to take unscheduled breaks every 15 to 30 minutes and that these breaks
would last 10 to 15 minutes; could occasionally lift/carry 20 pounds; could use his hands to
grasp, turn, and twist objects 5% of the day; could use his fingers for fine manipulation 10%
of the day; could use his arms for reaching 25% of the day; could twist and bend at the waist
25% of the day; should avoid exposure to extreme heat and cold, high humidity, fumes, odors,
dusts, gases, perfumes, cigarette smoke, soldering fluxes, solvents/cleaners, and chemicals;
could occasionally twist, stoop, and crouch; could never climb ladders and stairs; and would
be absent from work more than twice a month. Admin. Rec. at 242-244.
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paperwork for [plaintiff’s] Social Security Disability application and FAA pilot’s license.” The33
ALJ also gave little weight to Dr. Hall’s opinion because he had only been plaintiff’s treating
physician for six months, his treatment notes were “sparse”, and his notes “do not adequately
specify what clinical observations caused him to reach his opinions.”34
The ALJ gave great weight to Dr. Caldwell’s opinion because “he is ... familiar with the35
Social Security Administration’s regulations and definitions, which I find provided Dr.
Caldwell an educated platform upon which to base his opinions” and because he “reviewed
[plaintiff’s] entire medical evidence of record up to that time, which I find further provided Dr.
Caldwell a sufficient factual basis upon which to base his opinions.” The ALJ gave minimal36
weight to Dr. Innes’ opinion, “to the extent that he rendered any,” because he only saw37
Admin. Rec. at 30.33
Admin. Rec. at 33.34
On February 3, 2012, Jay Caldwell, M.D., a non-examining source, opined that plaintiff35
could occasionally lift/carry 35 pounds; frequently lift/carry 10 pounds; stand/walk about 6
hours per day; sit about 6 hours per day; was limited frequently as to pushing and pulling with
his right extremity; could occasionally kneel; had no limitations as to climbing, balancing,
stooping, crouching, or crawling; had no limitations on the left as to reaching, handling,
fingering, or feeling; was limited on the right as to handling, fingering, and feeling, “more
likely than not ... frequently[,] [b]ut this is a fluid situation[;]” should avoid concentrated
exposure to extreme cold and heat, wetness, humidity, noise, and fumes/gases; and should
avoid moderate exposure to vibration and hazards. Admin. Rec. at 235-248.
Admin. Rec. at 33.36
Scott Innes, M.D., performed surgery on plaintiff’s right wrist on October 8, 2011 and37
on November 10, 2011. Admin. Rec. at 213-222. Dr. Innes never expressed any opinion as to
(continued...)
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plaintiff twice and “thus his relationship with [plaintiff] was limited.” The ALJ also gave38
minimal weight to Ms. Gaston’s opinions, even though “she is not an acceptable medical
source,” because she “only saw [plaintiff] on 1 occasion in November of 2011, and thus she was
unable to provide any additional opinions as to how [plaintiff’]s strength and grip may have
improved since she last saw [him] 11 months ago.”39
At step four, the ALJ found that plaintiff was “unable to perform any past relevant
work....”40
At step five, the ALJ found that plaintiff “has acquired work skills from past relevant
work that are transferable to other occupations with jobs existing in significant numbers in the
national economy....” The ALJ found that plaintiff’s transferable skills from his past relevant41
work at Dan’s TV and Appliance were “basic customer service skills, basic information
imparting skills, and basic information sharing skills.” As for plaintiff’s past relevant work42
(...continued)37
plaintiff’s functional capacities.
Admin. Rec. at 33.38
Admin. Rec. at 33. Gaston noted a lack of grip strength on the right, a lack of sensation39
on the radial side of plaintiff’s right thumb, and some range of motion limitations as to the
right wrist and thumb. Admin. Rec. at 208.
Admin. Rec. at 34.40
Admin. Rec. at 35.41
Admin. Rec. at 34.42
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as a computer repair technician for his wife’s business, the ALJ found that plaintiff’s
transferable skills were “basic computer skills, basic customer service skills, and basic
information imparting skills.” The ALJ acknowledged that plaintiff denied answering the43
phone or using a computer keyboard for data entry while working for his wife, but she noted
that in his Work History Report, plaintiff reported that his duties included “assist[ing] w/44
reception/office, computer keyboard.” The ALJ also acknowledged that plaintiff’s wife filled45
out his Work History Report, but she found “that as the claimant’s employer and sole
supervisor, the claimant’s wife was accurately able to list the duties that the claimant
performed during that work.” Thus, the ALJ found “that the claimant more likely than not46
performed tasks that included basic office reception and computer keyboarding.”47
Based on the vocational expert’s testimony, the ALJ specifically found that plaintiff’s48
transferable skills would allow him to work as a receptionist, an information clerk, or a
Admin. Rec. at 35.43
Admin. Rec. at 181-183.44
Admin. Rec. at 35.45
Admin. Rec. at 35.46
Admin. Rec. at 35.47
Patricia Ayerza testified as the vocational expert at the hearing.48
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telemarketer. The ALJ explained that “[t]he vocational expert testified that the claimant’s49
previous work is so similar to the jobs recited above that the claimant would need to make
very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the
industry.” The ALJ concluded that “although the claimant’s additional limitations do not50
allow the claimant to perform the full range of sedentary work, considering the claimant’s age,
education and transferable work skills, a finding of ‘not disabled’ is appropriate under the
framework of Medical-Vocational Rule 201.07,[ ] section 201.00(f) of the Medical-Vocational51
Guidelines, and 20 CFR 404.1568(d).” Thus, the ALJ found that plaintiff “has not been under52
a disability, as defined in the Social Security Act, from October 8, 2011, through the date of this
decision....”53
Admin. Rec. at 36.49
Admin. Rec. at 36.50
“Pursuant to Rule 201.07, a claimant of advanced age who is limited to sedentary51
work, has a high school degree, can perform skilled or semi-skilled work, and has transferrable
skills is ‘not disabled.’” Tommasetti v. Astrue, 533 F.3d 1035, 1043 (9th Cir. 2008). “Rule 201.07
is augmented by Rule 201.00(f), which states that ‘[i]n order to find transferability of skills to
skilled sedentary work for individuals who are of advanced age ..., there must be very little,
if any, vocational adjustment required in terms of tools, work processes, work settings, or the
industry.’” Id.
Admin. Rec. at 36.52
Admin. Rec. at 36.53
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Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner....” The court “properly affirms the Commissioner’s decision denying benefits
if it is supported by substantial evidence and based on the application of correct legal
standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is
‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclusion.’”
Id. If the evidence is susceptible to more than one reasonable interpretation, the court must
uphold the Commissioner’s decision. Id. But, the Commissioner’s decision cannot be affirmed
“‘simply by isolating a specific quantum of supporting evidence.’” Holohan v. Massanari, 246
F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred in failing to include in her RFC the manipulative
limitations of his dominant right hand. The ALJ found that plaintiff
has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except [he]: is limited to jobs that
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would allow him to alternate between sitting and standing
positions for 15 minutes once an hour throughout the day; cannot
manipulate objects smaller than the size of a paperclip with the left
hand; and must avoid concentrated exposure to noise.[ ]54
The ALJ did not include any limitations as to plaintiff’s right hand or wrist. Plaintiff argues
that this was error and that the ALJ should have included the right hand limitations assessed
by Dr. Caldwell because she gave Dr. Caldwell’s opinion great weight. Dr. Caldwell opined
that plaintiff would have “some limitations” on the right as to reaching, handling, fingering,
and feeling, “more likely than not ... frequently....”55
“[A]n RFC that fails to take into account a claimant’s limitations is defective.” Valentine,
574 F.3d at 690. Defendant concedes that the ALJ erred in failing to include right hand
limitations in plaintiff’s RFC but argues that the error was harmless because the three56
occupations identified by the vocational expert could be performed by someone with the right
hand limitations that Dr. Caldwell assessed. Defendant contends that Dr. Caldwell opined that
plaintiff would be limited to frequent handling, fingering, and feeling with his right hand.
“Frequently” for Social Security purposes means between one-third and two-thirds of an eight-
hour day. SSR 85-15. Defendant argues that it is reasonable to assume that Dr. Caldwell used
the term “frequently” as a term of art common in Social Security proceedings.
Admin. Rec. at 28.54
Admin. Rec. at 237.55
Amended Defendants’s Brief at 5, Docket No. 17.56
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If plaintiff were limited to frequent handling, fingering, and feeling with his right upper
extremity, then defendant argues that plaintiff would still be able to perform the jobs of a
receptionist, information clerk, and telemarketer. The receptionist job requires no more than
frequent handling and no more than occasional fingering and no feeling. The information clerk
job requires no more than occasional handling and no fingering or feeling. And, the
telemarketer job requires occasional handling, frequent fingering, and no feeling. Thus,
defendant argues that an individual with the right hand limitations found by Dr. Caldwell is
capable of performing the jobs identified by the vocational expert.
As plaintiff is quick to point out, Dr. Caldwell may not have opined that plaintiff had
the capacity to perform fingering, handling, and feeling frequently, but rather that, as the ALJ
noted, plaintiff “would frequently be limited when using his right upper extremity.” Plaintiff57
insists that Dr. Caldwell opined that the level of limitation would be frequent, not that the
capacity to perform would be frequent, which is what defendant contends. Plaintiff points out
that on a different part of the RFC form, Dr. Caldwell noted that as to pushing and pulling,
plaintiff was “limited in the upper extremities” ... R[ight] frequently.” Plaintiff argues that58
this statement by Dr. Caldwell makes it clear that Dr. Caldwell believed that plaintiff would
be frequently limited as to his right upper extremities.
Admin. Rec. at 33.57
Admin. Rec. at 235.58
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But even if Dr. Caldwell meant that plaintiff could only occasionally handle, finger, or
feel, defendant argues that the ALJ’s error would still be harmless because plaintiff could
perform the job of information clerk. The information clerk job requires no more than
occasional handling and no feeling or fingering.
Defendant’s harmless error argument fails, in part, because it is based on a factual
determination that the ALJ never made. Although the ALJ gave Dr. Caldwell’s opinion great
weight, the ALJ did not include the right hand limitations that Dr. Caldwell opined plaintiff
had. The court can only affirm an “ALJ's decision based on the reasoning and factual findings
offered by the ALJ....” Bray, 554 F.3d at 1226. More importantly, defendant’s harmless error
argument fails because this error was not “inconsequential to the ultimate nondisability
determination.” Stout, 454 F.3d at 1055. Rather, the ALJ’s failure to include all of plaintiff’s
functional limitations in his RFC means that the ALJ’s step five findings are not supported by
substantial evidence. “The hypothetical an ALJ poses to a vocational expert, which derives
from the RFC, ‘must set out all the limitations and restrictions of the particular claimant.’”
Valentine, 574 F.3d at 690 (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). “If the
hypothetical does not reflect all the claimant’s limitations, ... the expert’s testimony has no
evidentiary value to support a finding that the claimant can perform jobs in the national
economy.” DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). Here, the hypotheticals the
ALJ gave to the vocational expert were incomplete, and thus the vocational expert’s testimony
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has no evidentiary value. As a result, the ALJ’s step five findings, including her transferability
of skills analysis, are not supported by substantial evidence. The ALJ’s failure to include any59
right hand or wrist manipulative limitations in the RFC is reversible error.60
Plaintiff next argues that the ALJ erred because she failed to consider that prior to his
alleged disability onset date, he had an excellent and steady work history dating back to at
least 1973. Plaintiff argues that this steady work history should have been considered in the
evaluation of his disability application. See SSR 96-7p (in assessing credibility, ALJ should
consider claimant’s “prior work record”); Taybron v. Harris, 667 F.2d 412, 415 n.6 (3rd Cir.
1981) (“when the claimant has worked for a long period of time, his testimony about his work
capabilities should be accorded substantial credibility”). Plaintiff contends that while an
excellent work history is not controlling, it is a factor that must at least be considered and it
was error for the ALJ not to do so.
To the extent that the ALJ failed to consider plaintiff’s work history, this error was
harmless because the ALJ gave numerous other reasons for finding plaintiff’s pain and
symptom testimony less than credible. See Batson v. Comm’r of Social Sec. Admim., 359 F.3d
SSR 82-41 provides that “[a]ll functional limitations included in the RFC (exertional59
and nonexertional) must be considered in determining transferability.”
Because the ALJ’s transferability of skills analysis was flawed due to the ALJ’s failure60
to include all functional limitations in the plaintiff’s RFC, the court need not consider plaintiff’s
arguments that the ALJ erred in finding that there would be little to no vocational adjustment
and that the ALJ improperly “parsed out” tasks from some of his prior jobs and then treated
those tasks as though they themselves were past relevant work.
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1190, 1197 (9th Cir. 2004) (harmless error if some of ALJ's reasons for rejecting credibility are
rejected and some are upheld as long as the ALJ’s credibility finding remains supported by
substantial evidence). Plaintiff does not challenge any of the reasons the AL gave for finding
his pain and symptom testimony less than credible and thus the ALJ’s credibility finding
remains supported by substantial evidence.
Finally, plaintiff argues that the ALJ applied the wrong standard for disability in this
case. The ALJ found that “while [plaintiff’s] use of ... both his right and left hands is limited,
he is not so limited that he is considered ‘disabled’ under the Social Security Act.” The ALJ61
stated that she “reach[ed] this finding in part because the medical evidence does not support
[plaintiff’s] allegations of a complete inability to work.” Plaintiff argues that the standard for62
disability is not “a complete inability to work” but rather in this case, the standard was
whether he possessed skills that were readily transferable to a significant range of semi-skilled
work. Plaintiff insists that he was not required to prove a “complete inability to work” and
thus the ALJ erred in finding that he was not disabled.
This argument is meritless. When the ALJ’s decision as a whole is considered, it is clear
that she applied the correct standard, which was that individuals of an advanced age with a
Admin. Rec. at 29.61
Admin. Rec. at 29.62
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high school education who are limited to sedentary work are not disabled if they have skills
that will transfer to other occupations with little vocational adjustment.
Because the ALJ erred in assessing plaintiff’s RFC, the court must determine whether
to remand this action for further proceedings or for an award of benefits. “Remand for further
administrative proceedings is appropriate if enhancement of the record would be useful.”
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (emphasis omitted). “Conversely, where
the record has been developed fully and further administrative proceedings would serve no
useful purpose, the district court should remand for an immediate award of benefits.” Id.
Here, a remand for further proceedings is appropriate because “the ALJ’s residual functional
capacity determination was flawed and the hypothetical question was incomplete and included
incorrect assumptions.” Hill v. Astrue, 698 F.3d 1153, 1162-63 (9th Cir. 2012).
Conclusion
Based on the foregoing, the decision of the Commissioner is reversed, and this matter
is remanded for further proceedings.
DATED at Anchorage, Alaska, this 5th day of February, 2014.
/s/ H. Russel Holland
United States District Judge
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