United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. RUSSO, UNITED STATES MAGISTRATE JUDGE.
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.
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. 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.
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.
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.
four, the ALJ concluded plaintiff could perform her past
relevant work as a ledger bookkeeper and administrative
clerk. Tr. 33.
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).
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).
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, ...