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Holland v. Berryhill

United States District Court, D. Oregon

December 4, 2017

VICKI EILEEN HOLLAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Vicki Holland brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability Insurance Benefits. For the reasons set forth below, the Commissioner's decision is reversed and this case remanded for the immediate payment of benefits beginning December 22, 2014.

         BACKGROUND

         Born on December 22, 1954, plaintiff alleges disability beginning March 6, 2013, due to diabetes, retinopathy, neuropathy, heart problems, transient ischemic attacks, high blood pressure, incontinence, and back and right shoulder pain. Tr. 202, 206, 223.[1] On March 25, 2016, the Administrative Law Judge (“ALJ”) issued a decision finding plaintiff not disabled. Tr. 21-34. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-6.

         THE ALJ'S FINDINGS

         At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 23. At step two, the ALJ determined the following impairments were medically determinable and severe: “occlusion/stenosis of the carotid artery/status post transient ischemic attacks (TIAs); hypertension; diabetes mellitus, type II; obesity; and degenerative disc disease/spondylosis of the cervical spine without myelopathy.” Id. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 25.

         The ALJ next resolved plaintiff had the residual functional capacity (“RFC”) to perform a limited range of light work:

[She] can stand/walk for 4 hours in an 8-hour workday with normal breaks and sit for 4 hours in an 8-hour workday with normal breaks. [She] is able to perform work that does not require climbing ladders, ropes or scaffolds. [She] is able to occasionally climb ramps and stairs, balance, stoop, and crouch. [She] is able to frequently kneel and crawl. [She] is able to perform work that allows her to avoid exposure to extreme cold, extreme heat, vibration, hazards and pulmonary irritants such as odors, dusts, fumes and gases. [She] is able to frequently handle, finger and feel with her non-dominant left upper extremity. [She] is able to occasionally reach overhead with her left upper extremity.

Tr. 26.

         At step four, the ALJ concluded plaintiff could perform her past relevant work as a ledger bookkeeper and administrative clerk. Tr. 33.

         DISCUSSION

         Plaintiff argues the ALJ erred by: (1) rejecting her subjective symptom statements; (2) finding she could perform her past relevant work as it is actually or generally performed; and (3) failing to include all of her limitations, “even as found by the ALJ, ” in the dispositive hypothetical question posed to the vocational expert (“VE”). Pl.'s Opening Br. 11-18 (doc. 17).

         The Commissioner concedes harmful legal error in regard to the latter two issues. Def.'s Resp. Br. 5 (doc. 21). The Commissioner, however, does not meaningfully address plaintiff's allegation of error concerning the mistreatment of her subjective symptom testimony. See id. at n.1 (discussing the ALJ's credibility finding in one conclusory sentence in a footnote, without citation to the record); see also City of Emeryville v. Robinson, 621 F.3d 1251, 1262 n.10 (9th Cir. 2010) (court need not consider “contentions raised only in footnote”) (citations omitted).

         The decision whether to remand for further proceedings or for the immediate payment of benefits lies within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th Cir. 2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, ...


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