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Plaintiff’s date of birth has been redacted in accordance with the General Order of the Court regarding Public Access

to Electronic Case Files, pursuant to the official policy on privacy adopted by the Judicial Conference of the United States.

REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MARSHIA MEAUX,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of 

Social Security,

Defendant.

CASE NO. C05-5580RBL

REPORT AND

RECOMMENDATION

Noted for June 2, 2006

Plaintiff, Marshia Meaux, has brought this matter for judicial review of the denial of her application

for supplemental security income (“SSI”) benefits. This matter has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4) and as

authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). After reviewing the parties’

briefs and the remaining record, the undersigned submits the following Report and Recommendation for the

Honorable Ronald B. Leighton’s review.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff currently is fifty-six years old.1 Tr. 37. She has an eighth grade education and no past

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Plaintiff apparently also had filed a number of prior applications for disability insurance and SSI benefits between 1992

and 1995, each of which were denied by the Commissioner. Tr. 17. Plaintiff has not sought to re-open those applications in this

case.

3

It appears that the copy of the transcript of this hearing contained in the record is incomplete, as page 999 ends in the

middle of the vocational expert’s testimony. Although the Court was unable to procure a full copy of that transcript, as explained

below, such is not necessary in order to resolve the issues presented in this case. 

REPORT AND RECOMMENDATION

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relevant work experience. Tr. 18, 30, 351. 

On May 11, 2000, plaintiff filed an application for SSI benefits,2

 alleging disability as of January 1,

1988, due to arthritis in her fingers and pain in her lower back and hip. Tr. 338-39, 344. Her application

was denied initially and on reconsideration. Tr. 304-05, 307, 315. A hearing was held before an

administrative law judge (“ALJ”) on July 17, 2003, at which plaintiff, represented by counsel, appeared and

testified, as did two medical experts and a vocational expert. Tr. 952-999.3

 

On November 5, 2003, the ALJ issued a decision, determining plaintiff to be not disabled, because

she was able to make a vocational adjustment to other jobs existing in significant numbers in the national

economy. Tr. 802-13. On June 2, 2004, the Appeals Council granted plaintiff’s request for review, and

remanded the matter to the ALJ to do the following: (a) give further consideration to plaintiff’s maximum

residual functional capacity; (b) evaluate the statements of plaintiff’s daughter; (c) evaluate plaintiff’s

obesity singly and in combination with her other impairments; and (d) obtain supplemental evidence from a

vocational expert to clarify the effect of plaintiff’s limitations on her occupational base. Tr. 815-17. 

A second hearing was held before the same ALJ on January 3, 2005, at which plaintiff, represented

by counsel, appeared and testified, as did two different medical experts and a lay witness. Tr. 1000-1044. A

vocational expert also appeared at the hearing, but did not testify. Id. On April 27, 2005, the ALJ issued a

decision, again determining plaintiff to be not disabled, finding specifically in relevant part:

(1) at step one of the disability evaluation process, plaintiff had not engaged in

substantial gainful activity since May 11, 2000; 

(2) at step two, plaintiff had “severe” impairments consisting of degenerative joint

disease in multiple joints, dysthymia, a personality disorder, and malingering; 

(3) at step three, none of plaintiff’s impairments met or equaled the criteria of any of

those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;

(4) at step four, plaintiff had the residual functional capacity to perform less than the

full range of light work, and had no past relevant work; and

(5) at step five, plaintiff was capable of performing other jobs existing in significant

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numbers in the national economy. 

Tr. 18, 30-31. Plaintiff’s request for review was denied by the Appeals Council on August 2, 2005, making

the ALJ’s decision the Commissioner’s final decision. Tr. 10; 20 C.F.R. § 416.1481. 

On September 6, 2005, plaintiff filed a complaint with this Court seeking review of the ALJ’s

decision. (Dkt. #1-#4). Specifically, plaintiff argues that decision should be reversed and remanded for an

award of benefits or, in the alternative, for further administrative proceedings, for the following reasons: 

(a) the ALJ erred in evaluating the medical evidence in the record;

(b) the ALJ erred in assessing plaintiff’s residual functional capacity; and

(c) the ALJ erred in failing to obtain the testimony of a vocational expert at the

second hearing. 

Plaintiff further argues in her reply brief that pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 2, §

202.01, she should have been found disabled as of her fifty-fifth birthday. The undersigned agrees that the

ALJ erred in determining plaintiff to be not disabled, but, for the reasons set forth below, recommends this

matter be remanded to the Commissioner for further administrative proceedings. While plaintiff requests

oral argument in this matter, the undersigned finds such argument to be unnecessary here. 

DISCUSSION

This Court must uphold the Commissioner’s determination that plaintiff is not disabled if the

Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to

support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). 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); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir. 1985). It is more than

a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir.

1975); Carr v. Sullivan, 772 F. Supp. 522, 524-25 (E.D. Wash. 1991). If the evidence admits of more than

one rational interpretation, the Court must uphold the Commissioner's decision. Allen v. Heckler, 749 F.2d

577, 579 (9th Cir. 1984). 

I. The ALJ Erred in Evaluating the Medical Evidence in the Record

The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the

medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence in the

record is not conclusive, “questions of credibility and resolution of conflicts” are solely the functions of the

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ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, “the ALJ’s conclusion must

be upheld.” Morgan v. Commissioner of the Social Security Administration, 169 F.3d 595, 601 (9th Cir.

1999). Determining whether inconsistencies in the medical evidence “are material (or are in fact

inconsistencies at all) and whether certain factors are relevant to discount” the opinions of medical experts

“falls within this responsibility.” Id. at 603. 

In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings “must be

supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this “by setting out a

detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation

thereof, and making findings.” Id. The ALJ also may draw inferences “logically flowing from the evidence.”

Sample, 694 F.2d at 642. Further, the court itself may draw “specific and legitimate inferences from the

ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 755, (9th Cir. 1989). 

The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of

either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a

treating or examining physician’s opinion is contradicted, that opinion “can only be rejected for specific and

legitimate reasons that are supported by substantial evidence in the record.” Id. at 830-31. However, the

ALJ “need not discuss all evidence presented” to him or her. Vincent on Behalf of Vincent v. Heckler, 739

F.3d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in the original). The ALJ must only explain

why “significant probative evidence has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07

(3d Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984). 

In general, more weight is given to a treating physician’s opinion than to the opinions of those who

do not treat the claimant. Lester, 81 F.3d at 830. On the other hand, an ALJ need not accept the opinion of

a treating physician, “if that opinion is brief, conclusory, and inadequately supported by clinical findings” or

“by the record as a whole.” Batson v. Commissioner of Social Security Administration, 359 F.3d 1190,

1195 (9th Cir.,2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242

F.3d 1144, 1149 (9th Cir. 2001). An examining physician’s opinion is “entitled to greater weight than the

opinion of a nonexamining physician.” Lester, 81 F.3d at 830-31. A nonexamining physician’s opinion may

constitute substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 830-

31; Tonapetyan, 242 F.3d at 1149. 

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A. Dr. Asher

At the second hearing, Dr. Kenneth Asher testified that he felt the documentation of plaintiff’s

malingering qualified many of her reports “throughout the record.” Tr. 1031. Dr. Asher further testified

that “given her reporting,” it appeared plaintiff would receive “marked ratings” regarding her activities of

daily living, social functioning, and concentration, persistence and pace. Tr. 1032-33. With respect to Dr.

Asher’s testimony, the ALJ found as follows:

I have considered the opinion of Dr. Asher, but give it no weight in this decision. Dr.

Asher appears to have based his opinion primarily on the claimant’s subjective

complaints at the hearing. His assessment is not supported by the objective medical

evidence in the file. The only treatment the claimant has ever received for her allegedly

disabling depression and anxiety were antidepressant prescription refills from her

primary care physicians. She was not seeing any psychiatrist or psychologists, never

underwent therapy or counseling and was never hospitalized due to mental impairments. 

Further, at one point when referred to a psychological evaluation by Disability

Determination Services she did not comply. This evidence indicates that the claimant’s

depressive symptoms were well controlled with the use of medication and imposed at

most moderate limitations on her functional abilities. Although the claimant testified

that she cannot afford to seek psychiatric treatment, there is no indication that she has

ever sought support from a low income or free medical clinic, or tried any alternative

therapies to relieve her pain. Further, the claimant did receive state general assistance

funds and medical coverage until the year 2003. Therefore, she could have received

psychiatric treatment if she so desired. 

Tr. 25-26. 

Plaintiff argues the ALJ erred by finding Dr. Asher based his opinion primarily on her subjective

complaints. She asserts Dr. Asher specifically indicated he rated her as markedly impaired in the above

three functional areas on the reports of other medical sources in the record. Dr. Asher, however, testified

specifically that “given her reporting,” she would be markedly in those three areas. Tr. 1032-33. Also as

noted above, Dr. Asher further testified that her reports “throughout the record” had to be qualified due to

the documentation of her malingering. Tr. 1031. Accordingly, the ALJ cannot be faulted for discounting

Dr. Asher’s opinion in part for this reason. Indeed, the ALJ also provided several additional reasons as to

why the evidence in the record did not support such marked mental functional limitations, none of which

have been challenged by plaintiff. 

B. Dr. Neims and Dr. Miller

In late August 2001, Daniel M. Neims, Ph.D., completed a state agency physical evaluation form, in

which he found plaintiff to be moderately to severely limited in a number of different mental functional

areas, due to a personality disorder, chronic post traumatic stress disorder, and a somatization disorder. Tr.

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463-64. Dr. Neims further found she would be so limited for a period of twelve months. Tr. 465. In late

November 2001, plaintiff was evaluated by Linda Miller, D.O., who diagnosed her with major depressive

disorder and a global assessment of functioning (“GAF”) of 60. Tr. 538. With respect to plaintiff’s ability

to function, Dr. Miller found as follows:

Claimant may have difficulty managing her own funds as, she does not seem to know

basic math. Claimant can probably preform simple and repetitive tasks without special

or additional supervision and accept instruction from supervisors. Due to the symptoms

of her mental illness she may have difficulties performing detailed and complex tasks,

interacting with coworkers and the public, performing work activities on a consistent

basis, maintaining regular attendance in the workplace, completing a normal workday or

workweek and dealing with the usual stress encountered in competitive work. 

Id. Dr. Miller did feel, however, that her symptoms were treatable, and that they would “likely improve

within the next 12 months,” if she was “compliant with adequate mental health treatment.” Id. 

Plaintiff argues the ALJ erred in failing to explain why he did not adopt the many mental functional

limitations found by Drs. Neims and Miller. The undersigned agrees. Although the ALJ did discuss why he

felt plaintiff’s depressive symptoms “imposed at most moderate limitations on her functional abilities,” 

(Tr. 25-26), he provided no analysis regarding the opinions of Dr. Neims and Dr. Miller. Defendant argues

the ALJ accommodated all of the limitations found by these medical sources by limiting plaintiff to simple,

routine, repetitive work tasks and to limited contact with the public. Defendant’s Brief, p. 14. Clearly,

however, both Dr. Neims and Dr. Miller found plaintiff suffered from more than just these two limitations. 

As such, it is not at all clear that the ALJ actually considered their full opinions. 

C. Dr. Lysak

In mid-December 2001, William Lysak, Ph.D., completed a psychiatric review technique form, in

which he found plaintiff to have moderate restrictions in her activities of daily living, moderate difficulties in

social functioning, and moderate difficulties in maintaining concentration, persistence or pace. Tr. 549. Dr.

Lysak also completed a mental residual functional capacity assessment form at the same time. Tr. 553-55. 

In the “summary conclusions” section of that form, Dr. Lysak checked a number of boxes indicating that

plaintiff had moderate limitations in several mental functional areas, and a marked limitation in one such

area. Tr. 553-54. In the “functional capacity assessment” section of that form, Dr. Lysack stated that she

could “maintain attention and concentration for” two hour periods, “relate and get along with a limited

number of” other people (but would “be unable to deal extensively” with the general public), and “adapt to

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changes in [a] competitive work environment performing non-complex tasks.” Tr. 555. 

Plaintiff argues the ALJ erred in ignoring and/or overlooking the many moderate mental functional

limitations checked off in the “summary conclusions” section of the mental residual functional capacity

assessment form. Defendant asserts the ALJ properly included in his assessment of plaintiff’s residual

functional capacity the statements Dr. Lysak made in the “functional capacity assessment” section of that

form. Specifically, defendant asserts this latter section takes precedence over the “summary conclusions”

section, arguing that “[r]equiring the ALJ to recite each box would not add any limitations” to plaintiff’s

residual functional capacity assessment. Defendant’s Brief, p. 15. 

It is true that the ALJ’s assessment of plaintiff’s residual functional capacity appears to mirror the

findings contained in the “functional capacity assessment” section of the mental residual functional capacity

assessment form completed by Dr. Lysak. It also is true that the Court itself may draw “specific and

legitimate inferences from the ALJ’s opinion.” Magallanes, 881 F.2d at 755. Here, however, as with the

opinions of Dr. Neims and Dr. Miller, the ALJ included no analysis of the mental functional limitations

found by Dr. Lysak in his decision. That is, the Court in this case cannot draw any specific and legitimate

inferences from the ALJ’s decision on this issue, as it would be mere speculation, as plaintiff asserts, as to

whether the ALJ in fact considered those limitations. As such, the undersigned also finds the ALJ erred in

failing to properly evaluate Dr. Lysak’s opinion. 

D. Dr. Quint

Plaintiff was examined by Dr. Howard Quint in early November 2001. He noted that she “gave a

very poor effort for the entire physical exam,” and was “very reluctant to follow” his directions “with

minimal effort being exerted.” Tr. 531. For example, “[h]er lack of willingness to do the exercises” Dr.

Quint had her perform, “seemed out of proportion to the physical findings of observable pain.” Tr. 531,

533-34. Dr. Quint also observed “[s]he was very conscience of me observing her walk and her walk” might

have been “somewhat affected by this.” Tr. 532. The majority of Dr. Quint’s objective findings,

furthermore, were fairly unremarkable. Tr. 531-33. 

In terms of plaintiff’s functional capacity, Dr. Quint concluded as follows:

The number of hours the claimant can stand and walk in an eight-hour workday would

be two hours limited by poor exercise tolerance and motivation. She should be able to

sit for six hours with breaks. She requires no assistive devices. She could occasionally

and frequently carry 10 pounds although limited by hand discomfort. The claimant has

frequent postural limitations because of joint and back discomfort. She also has frequent

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manipulative limitations because of pain in her metacarpal phalangeal joints. The

claimant has no environmental restrictions other than driving while on Percocet. 

Tr. 534. With respect to Dr. Quint’s opinion, the ALJ found as follows:

I have considered the opinion of Dr. Quint, but cannot give it significant weight in this

determination. The claimant’s failure to exert herself and keep her body in a state of

basic physical well being and conditioning are personal choices and not factors upon

which I can find an individual disabled. Further, given her behavior during the

examination it is more likely than not that she was not as restricted as Dr. Quint

reported. Since the objective findings of Dr. Quint’s examination were consistent with

those described by Dr. [Regina] Bonnevie in June 2000, I conclude that the opinion of

Dr. Bonnevie should be given greater weight in this evaluation. 

Tr. 21. 

Plaintiff argues that contrary to the ALJ’s findings regarding her “personal choices,” Dr. Quint did

not state he was basing his opinion on those alleged choices. The undersigned agrees. It is true, as noted

above, that Dr. Quint had issues with plaintiff’s lack of effort. Nevertheless, also as noted above, he still

opined that plaintiff would have significant standing, walking and postural limitations. The ALJ did not

state why he was in a better position than Dr. Quint to discount plaintiff’s objective medical findings and

physical limitations based on plaintiff’s observed lack of effort. That is, the ALJ failed to provide a proper

explanation as to why Dr. Quint’s functional assessment should not have been adopted, even though Dr.

Quint was the one to personally observe plaintiff during the examination. 

II. The ALJ Erred in Assessing Plaintiff’s Residual Functional Capacity

If a disability determination “cannot be made on the basis of medical factors alone at step three of

the evaluation process,” the ALJ must identify the claimant’s “functional limitations and restrictions” and

assess his or her “remaining capacities for work-related activities.” SSR 96-8p, 1996 WL 374184 *2. A

claimant’s residual functional capacity assessment is used at step four to determine whether he or she can do

his or her past relevant work, and at step five to determine whether he or she can do other work. Id. It thus

is what the claimant “can still do despite his or her limitations.” Id. 

A claimant’s residual functional capacity is the maximum amount of work the claimant is able to

perform based on all of the relevant evidence in the record. Id. However, a claimant’s inability to work

must result from his or her “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those

limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing a

claimant’s residual functional capacity, the ALJ also is required to discuss why the claimant’s “symptomCase 3:05-cv-05580-RBL Document 25 Filed 05/08/06 Page 8 of 13
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related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the

medical or other evidence.” Id. at *7. 

The ALJ assessed plaintiff with the following residual functional capacity:

The claimant has the residual functional capacity to perform a [sic] less than the full

range of light work. The claimant retains the ability to lift and carry up to 10 pounds

frequently and up to 20 pounds occasionally. She is able to sit, stand, and walk for

about 6 hours in an 8 hour work day. Due to her degenerative arthritis, the claimant

should avoid overhead reaching with the upper extremities and she cannot climb ladders,

ropes or scaffolds. The claimant should avoid hazardous working conditions such as

working at heights or around dangerous machinery and she can only perform occasional

climbing of ramps and stairs. The claimant should only perform work that requires

limited contact with the public, but she [sic] able to perform simple, routine, repetitive

work tasks and deal appropriately with supervisors and coworkers. 

Tr. 30. Plaintiff argues that in light of the ALJ’s errors in evaluating the medical evidence in the record

discussed above, the ALJ’s assessment of her residual functional capacity was erroneous as well. The

undersigned agrees. Plaintiff further argues the ALJ erred in not addressing her manipulative limitations

with respect to that assessment as well. Again, the undersigned agrees. 

The record does contain objective medical evidence indicating that plaintiff has such limitations. For

example, while evidence from late April and early May 1996, reveal no manipulative limitations or problems

with grip strength (Tr. 182, 276), “mild manipulative limitation regarding her ability to grasp effectively”

was noted in late June 2000. Tr. 449. In early July 2000, plaintiff was felt to be limited with respect to

gross manipulation and reaching in all directions, including overhead. Tr. 453. In early November 2001, Dr.

Quint opined that plaintiff had “frequent manipulative limitations because of pain in her metacarpal

phalangeal joints.” Tr. 534. Defendant argues the ALJ both adequately considered and accomodated

plaintiff’s hand impairments in assessing her with the above residual functional capacity. Other than with

respect to overhead reaching, however, nowhere in that assessment did the ALJ address or note the other

limitations stemming therefrom. Further, the ALJ did not provide any analysis regarding the objective

medical evidence in the record noted above concerning those limitations. 

III. Vocational Expert Testimony

If a claimant cannot perform his or her past relevant work, at step five of the disability evaluation

process the ALJ must show there are a significant number of jobs in the national economy the claimant is

able to do. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. § 416.920(d), (e). The ALJ

can do this through the testimony of a vocational expert or by reference to the Commissioner’s MedicalCase 3:05-cv-05580-RBL Document 25 Filed 05/08/06 Page 9 of 13
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Vocational Guidelines (the “Grids”). Tackett, 180 F.3d at 1100-1101; Osenbrock v. Apfel, 240 F.3d 1157,

1162 (9th Cir. 2000). 

An ALJ’s findings will be upheld if the weight of the medical evidence supports the hypothetical

posed by the ALJ. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1987); Gallant v. Heckler, 753 F.2d

1450, 1456 (9th Cir. 1984). The vocational expert’s testimony therefore must be reliable in light of the

medical evidence to qualify as substantial evidence. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 

Accordingly, the ALJ’s description of the claimant’s disability “must be accurate, detailed, and supported by

the medical record.” Embrey, 849 F.2d at 422 (citations omitted). The ALJ, however, may omit from that

description those limitations he or she finds do not exist. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.

2001). 

Plaintiff argues the ALJ erred in not obtaining the testimony of a vocational expert at the second

hearing, although, as noted above, one was present at the time. She asserts the ALJ also ignored and/or

overlooked the Appeals Council’s directive to obtain such testimony. Plaintiff further argues the ALJ’s

reliance on the jobs found by the vocational expert in the first hearing (Tr. 29-30, 999) were precluded by

her manipulative limitations and by her restriction to light work and to simple, repetitive tasks. Defendant

counters the ALJ did not need to obtain additional vocational expert testimony, because the ALJ assessed

plaintiff with the same residual functional capacity in both of his decisions. 

In light of the ALJ’s errors in evaluating the medical evidence in the record and assessing plaintiff’s

residual functional capacity noted above, however, the undersigned finds the ALJ should have obtained the

testimony of the vocational expert at the second hearing. That is, because the ALJ did so err, reliance on

prior vocational expert testimony that was based on the same or a substantially similar residual functional

capacity assessment was erroneous as well. Therefore, on remand, unless the Commissioner determines

that a finding of disability or non-disability can be made on the Grids alone, supplemental testimony from a

vocational expert shall be obtained. 

IV. This Matter Should Be Remanded for Further Administrative Proceedings

The Court may remand this case “either for additional evidence and findings or to award benefits.”

Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court reverses an ALJ’s

decision, “the proper course, except in rare circumstances, is to remand to the agency for additional

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investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). 

Thus, it is “the unusual case in which it is clear from the record that the claimant is unable to perform

gainful employment in the national economy,” that “remand for an immediate award of benefits is

appropriate.” Id. 

Benefits may be awarded where “the record has been fully developed” and “further administrative

proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v. Massanari, 246 F.3d

1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s]

evidence, (2) there are no outstanding issues that must be resolved before a

determination of disability can be made, and (3) it is clear from the record that the ALJ

would be required to find the claimant disabled were such evidence credited.

Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). Plaintiff

argues this matter should be remanded for an award of benefits, because the ALJ erred in evaluating the

opinions of Drs. Neims, Miller, Lysak and Quint. 

It is true that where the ALJ has failed “to provide adequate reasons for rejecting the opinion of a

treating or examining physician,” that opinion generally is credited “as a matter of law.” Lester, 81 F.3d at

834 (citation omitted). However, where the ALJ is not required to find the claimant disabled on crediting

of evidence, this constitutes an outstanding issue that must be resolved, and thus the Smolen test will not be

found to have been met. Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003). Further, “[i]n cases

where the vocational expert has failed to address a claimant’s limitations as established by improperly

discredited evidence,” the Ninth Circuit “consistently [has] remanded for further proceedings rather than

payment of benefits.” Bunnell, 336 F.3d at 1116. 

Here, it is not clear the ALJ would be required to find plaintiff disabled based on the opinions of

Drs. Neims, Miller, Lysak and Quint. For example, there is evidence in the record that plaintiff suffers at

most from only moderate mental functional limitations, and that she is capable of at least some kind of work

based on those limitations. Tr. 144-46, 155, 166-68, 177. Dr. Lysak himself found plaintiff to be markedly

limited in only one mental functional area, and noted that despite her limitations, she would be able to work,

as did Dr. Miller. Tr. 538, 549, 553-55. Although it may be that based on the severity of limitations found

by Dr. Neims and Dr. Asher alone plaintiff could be found disabled, as discussed above, the ALJ properly

discounted the testimony of Dr. Asher, and Dr. Neims’ limitations were discounted “to a large extent” by

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Dr. John Kooiker, the other medical expert who testified at the second hearing, due to plaintiff’s credibility

issues. Tr. 990-91. 

In addition, while Dr. Quint’s assessment of plaintiff’s residual functional capacity may have been

more restrictive than that found by the ALJ, it hardly establishes that plaintiff is incapable of all work,

particularly in light of the other objective medical evidence in the record concerning her physical residual

functional capacity. Finally, it should be noted, and indeed has been pointed out by plaintiff herself, that the

vocational expert testimony in this case has not addressed her limitations as established by improperly

discredited evidence. Bunnell, 336 F.3d at 1116. Thus, for these reasons, the undersigned rejects plaintiff’s

contention that remand for an outright award of benefits is appropriate in this case. That is, because issues

remain with respect to plaintiff’s residual functional capacity and her ability to perform other work existing

in significant numbers in the national economy, this matter should be remanded to the Commissioner for

further administrative proceedings. 

V. Plaintiff’s Age at the Time of the ALJ’s Second Decision

Plaintiff raises an additional issue in her reply brief that was not raised in her opening brief. In her

reply brief, plaintiff argues that because she was age 55 at the time the ALJ issued his second decision, she

should have been found disabled under 20 C.F.R. Part 404, Subpart P, Appendix 2, § 202.01, in light of her

age, education, past work experience, and residual functional capacity. Because plaintiff did not raise this

issue in her opening brief, and has provided no reason as to why she did not raise it earlier, the undersigned

declines to address it here. Nevertheless, on remand, the Commissioner also shall determine whether as of

her fifty-fifth birthday, plaintiff should be found disabled based on the Grids. 

CONCLUSION

Based on the foregoing discussion, the Court should find the ALJ improperly concluded plaintiff

was not disabled, and should reverse the ALJ’s decision and remand this matter to the Commissioner for

further administrative proceedings in accordance with the findings contained herein. 

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 72(b),

the parties shall have ten (10) days from service of this Report and Recommendation to file written

objections thereto. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those

objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit

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imposed by Fed. R. Civ. P. 72(b), the clerk is directed set this matter for consideration on June 2, 2006, as

noted in the caption. 

DATED this 8th day of May, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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