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ORDER

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

THOMAS J. WEST, III,

Plaintiff,

v.

JO ANNE BARNHART,

Commissioner of Social Security,

Defendant.

CASE NO. C05-1711RSL

ORDER

The Court, having reviewed the entire record, including the administrative

record, the memoranda of the parties, and the Report and Recommendation of the

Honorable Monica J. Benton, United States Magistrate Judge, finds and orders as

follows: 

(1) The Court adopts the Report and Recommendation;

(2) The Administrative Law Judge (“ALJ”) improperly discredited plaintiff’s

testimony about the extent of his impairments, which led to the conclusion that plaintiff

could perform jobs that exist in significant numbers in the national economy. Because

the ALJ took seriously his obligation to develop the record despite his concerns regarding

plaintiff’s credibility, a vocational expert was consulted during the administrative

proceedings and was asked to assess plaintiff’s job prospects based on all of the

impairments plaintiff had identified. Working under the assumption that plaintiff’s

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 Defendant also seeks a remand for the purpose of making factual findings regarding

plaintiff’s ability to perform sedentary work. The vocational expert has already opined that, given

the limitations about which plaintiff testified, he would be unable to perform any job for an eighthour day (Tr. 1068)

ORDER

testimony was credible, the vocational expert concluded that plaintiff could not hold any

full-time employment and was therefore disabled at step five. Thus, no further

administrative proceedings are necessary in this case. The ALJ has failed to provide

legally sufficient reasons for rejecting plaintiff’s testimony, all outstanding issues of fact

have been resolved thanks to the presentation of hypotheticals to the vocational expert,

and the existing record shows that the ALJ would be required to find plaintiff disabled if

the discredited testimony were considered. See, e.g., McCartey v. Massanari, 298 F.3d

1072, 1076-77 (9th Cir. 2002).

Defendant argues that this matter should be remanded so the ALJ can make

specific findings regarding plaintiff’s ability to work for more than 20-30 minutes without

rest.1

 In similar situations where plaintiff’s eligibility for benefits turns entirely on the

credibility of his testimony, the Ninth Circuit has found that a remand to allow the ALJ to

further evaluate plaintiff’s claims of pain or impairment was an abuse of discretion. See

Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Moisa v. Barnhart, 367 F.3d

882, 887 (9th Cir. 2004). A remand for an award of benefits is the appropriate remedy

where, as in Benecke and Moisa, plaintiff’s testimony and the remaining record

establishes that plaintiff is disabled. Cf. Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th

Cir. 2003) (no vocational expert was called upon to consider all of the testimony that was

relevant to the case, necessitating a remand for further proceedings). Here, the vocational

expert has already established that plaintiff is unable to do any kind of substantial gainful

work which exists in the national economy if the limitations about which he testified are

considered. Giving defendant another opportunity to evaluate plaintiff’s residual

functional capacity is neither required nor justified: the reasons given for discrediting

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ORDER

plaintiff’s testimony were legally insufficient, the existing record supports a finding of

disability at step five, plaintiff has waited almost six years for benefits, and “[a]llowing

the Commissioner to decide the issue again would create an unfair ‘heads we win; tails,

let’s play again’ system of disability benefits adjudication.” Benecke, 379 F.3d at 595. 

See also Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The Commissioner,

having lost this appeal, should not have another opportunity to show that Moisa is not

credible any more than Moisa, had he lost, should have an opportunity for remand and

further proceedings to establish his credibility.”). The snippets of record on which

defendant bases its demand for additional fact-finding do not raise a substantial question

regarding plaintiff’s credibility or disability. Benecke, 379 F.3d at 593 (distinguishing

Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2002)).

(3) For all of the foregoing reasons, the Court takes plaintiff’s testimony

regarding his limitations as true and finds that he is entitled to benefits. This matter is

hereby REVERSED and REMANDED to the Commissioner of Social Security for an

award of benefits.

DATED this 29th day of August, 2006.

A

Robert S. Lasnik

United States District Judge

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