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1

 On February 12, 2007, Michael J. Astrue became the Commissioner of Social Security (the

“Commissioner”).

ORDER REVERSING AND REMANDING CASE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GREGORY H. BELL,

Plaintiff,

v.

MICHAEL J. ASTRUE,1

Defendant.

Case No. C06-44RSL

ORDER REVERSING

COMMISSIONER’S DECISION AND

REMANDING CASE 

I. INTRODUCTION

This matter comes before the Court on the Report and Recommendation of the Honorable

Monica J. Benton, United States Magistrate Judge, plaintiff’s objections thereto, and the

Commissioner’s response to those objections. Having reviewed the administrative record (“Tr.”)

and the remainder of the record, the Court reverses the Commissioner’s decision and remands

the case for further administrative proceedings. 

II. DISCUSSION

The Court adopts Magistrate Judge Benton’s summary of the facts and procedural

background, her analysis regarding the standard of review, and her conclusions regarding the

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2

 The Court also notes that, contrary to plaintiff’s assertion, the ALJ addressed the factors in SSR

96-7p and noted which portion of plaintiff’s testimony she found not credible.

ORDER REVERSING AND REMANDING CASE - 2

Administrative Law Judge’s (“ALJ”) consideration of plaintiff’s credibility.2 The Court writes

this opinion to address plaintiff’s arguments regarding the ALJ’s evaluation of the medical and

vocational evidence.

Plaintiff argues that the ALJ erred by rejecting the opinions of two of his treating

physicians, Drs. Costello and Dunn. The ALJ did not, as plaintiff claims, reject Dr. Costello’s

opinion because he was a family practitioner, not a psychiatrist. However, the ALJ gave Dr.

Costello’s opinion less weight for that reason, which is permissible. The ALJ also noted that Dr.

Costello completed a “checklist” form but “offered little explanation for his opinions and little

objective information to support his conclusions.” Tr. 22. The ALJ therefore provided specific

and legitimate reasons, supported by substantial evidence, for giving Dr. Costello’s opinion less

weight. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (explaining that an

ALJ can reject the opinion of a treating physician that is “brief and conclusory with little in the

way of clinical findings to support its conclusions”) (internal citation and quotation omitted).

The ALJ also considered Dr. Dunn’s opinion in determining plaintiff’s residual functional

capacity (“RFC”) but did not give it controlling weight. Tr. at p. 22. The ALJ explained, “Dr.

Dunn’s opinion is not dated, and it is not clear when it was offered or how long she had been

seeing the claimant at the time it was prepared.” Id. Although an ALJ is permitted to give more

weight to physicians who treated a claimant for a longer period of time, in this case, the ALJ did

not know how long Dr. Dunn had treated plaintiff or when she rendered her opinion. Dr.

Dunn’s medical records were ambiguous, and the ALJ was therefore required to re-contact her

to determine when she rendered her opinions and how long she treated plaintiff. See 20 C.F.R.

§§ 404.1512(e), 416.912(e); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The failure

to do so constituted error.

Plaintiff also argues that the ALJ erred in failing to determine whether he could “perform

sustained work activities in an ordinary work setting on a regular and continuing basis.” SSR

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3

 The Court does not agree with plaintiff’s allegation that the ALJ failed to consider the side

effects of his medication, including memory deficits. The ALJ noted plaintiff’s testimony in that regard,

but also found that plaintiff lacked credibility and that the evidence showed that plaintiff’s “fund of

knowledge is above average and his recall has been noted as ‘excellent.’” Tr. at p. 23.

4

The MRFC consists of three parts completed by a medical consultant. Part I, entitled “Summary

Conclusions,” requires the consultant to evaluate specific mental and social abilities such as “the ability to

ask simple questions or request assistance” by indicating in a check-box whether the claimant is “not

significantly limited,” “moderately limited,” or “markedly limited.” Part II is not relevant to this case. 

Part III, entitled “Functional Capacity Assessment,” requires the consultant to “explain [the] summary

conclusion [in Part I] in narrative form” and to “[i]nclude any information which clarifies limitation or

ORDER REVERSING AND REMANDING CASE - 3

96-8p. The ALJ’s decision does not contain that analysis, which constitutes error. See, e.g.,

Reddick v. Chater, 157 F.3d 715, 724 (1998). On remand, the ALJ must explain his analysis on

that point and explain how the evidence supports the RFC findings.3

Plaintiff also alleges that the ALJ erred in refusing to allow plaintiff’s counsel to question

the vocational expert during the hearing about the “moderate” limitations identified by the

Commissioner’s examining physicians. To assess Mr. Bell’s ability to perform past relevant

work, the ALJ posed a series of hypothetical questions to a vocational expert. These questions

included: 

1. “This individual is 40 years of age, is a high school level education with two year

college education. There are basic skills in reading and that [sic] mathematics. 

This person has no exertional limitations. This person is able to perform work

which requires occasional contact with the public, occasional contact with

coworkers, occasional contact with supervisors. Could you identify any of the

past work that this hypothetical individual could perform?”

2. “I would like you to presume our basic person. This individual should have no

contact with the public and minimal contact with coworkers and a stable work

environment. In your opinion could this person perform any of the past work

performed by Mr. Bell?”

3. “And if this individual were limited to solitary work ... could you identify any of

the past work that this individual could perform?”

Tr. at p. 372-373. 

 The claimant’s attorney then asked the ALJ if she could pose another hypothetical to the

vocational expert based on the mental residual functional capacity (“MRFC”) assessment

completed by the disability determination service (“DDS”).4 Tr. at p. 373. Specifically, the

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function.” See Tr. at p. 161-164. 

ORDER REVERSING AND REMANDING CASE - 4

attorney wanted to inquire about the abilities for which the claimant was found to be

“moderately limited,” including: (1) the ability to sustain an ordinary routine without special

supervision; (2) the ability to ask simple questions or request assistance; (3) the ability to accept

instructions and respond appropriately to criticism from supervisors; (4) the ability to get along

with coworkers and peers without distracting them or exhibiting behavioral extremes; and (5) the

ability to maintain socially appropriate behavior and adhere to basic standards of neatness and

cleanliness.” See Plaintiff’s Reply Brief at p. 2. 

The ALJ denied the attorney’s request. In her written decision the ALJ explained: 

Questioning was not permitted because the checklist portion of such form applies to the

broad range of work from SVP 1-9, and therefore the rating of “moderate” cannot be

understood without interpretation of that term. The medical consultants’ functional

capacity assessment based on their understanding and interpretation of the degree of

limitation within each category is found in the narrative section entitled Functional

Capacity Assessment. This is consistent with Social Security Administration policy. TR

at p. 25.

The Court finds that the ALJ did not adequately support her decision to prohibit

claimant’s attorney from questioning the vocational expert about claimant’s moderately limited

abilities. Even if the ALJ reasonably concluded that “‘moderate’ cannot be understood without

interpretation,” she did not explain why the summary conclusions in Part I of the MRFC should

be ignored. Although the ALJ explained that the limitations were contained in the narrative

section of the form, most of the “moderate” limitations were not included in the narrative. More

importantly, the hypothetical questions presented to the vocational expert by the ALJ did not

include the “moderate” limitations and therefore did not accurately reflect the claimant’s

residual functional capacity. Nor did the ALJ give sufficient reasons for rejecting those

limitations. Instead, the hypotheticals contained only general limitations regarding the amount

of contact with the public, coworkers, and supervisors. According to the Ninth Circuit, “the

hypothetical [posed to the vocational expert] must consider all of the claimant’s limitations.” 

Light v. Social Security Administration, 119 F.3d 789, 793 (9th Cir. 1997) (alteration in

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original); Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995). Where an ALJ has failed to

consider all of a claimant’s limitations, the court may remand the case to an ALJ for a more

comprehensive determination of the claimant’s vocational ability. Light, 119 F.3d at 794;

Andrews, 53 F.3d at 1044. On remand, the Court instructs the ALJ to question the vocational

expert about a hypothetical that includes all of claimant’s abilities and limitations that are

supported by the record.

The Court may direct an award of benefits where the record has been fully developed and

where further administrative proceedings would serve no useful purpose. See, e.g., Swenson v.

Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). In this case, however, further proceedings are

necessary to reevaluate Dr. Dunn’s opinion, including re-contacting her if necessary, to reassess

plaintiff’s RFC, and to question the vocational expert using a complete hypothetical. After those

steps are taken, the ALJ must reevaluate whether plaintiff can perform his past relevant work or

other work. 

III. CONCLUSION

The ALJ’s decision is not free of legal error. However, an award of benefits would be

inappropriate at this stage because outstanding issues remain. Accordingly, the Commissioner’s

decision is REVERSED, and this matter is REMANDED pursuant to 42 U.S.C. § 405(g) for

further administrative proceedings.

DATED this 15th day of March, 2007.

A

Robert S. Lasnik

United States District Judge

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