United States District Court, D. Arizona
CHARLES R. PYLE, District Judge.
Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c). Pending before the Court is Defendant's Motion to Remand (Doc. 21; see also Defendant's Memorandum in Support of Motion to Remand ("Memorandum") (Doc. 22)) which Plaintiff opposes (Doc. 27). For the following reasons, the Court denies Defendant's Motion in part to the extent that Defendant seeks remand for further proceedings and the Court grants Defendant's Motion in part to the extent that this matter is remanded for an immediate calculation and award of benefits.
On April 29, 2009, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging disability beginning on October 1, 2008 due to meningitis, a stroke, dizziness, headaches, anxiety, high blood pressure, and aphasia. (AR. 61-67, 80, 447-53). Plaintiff's applications were denied initially and on reconsideration, after which he requested a hearing before an Administrative Law Judge ("ALJ"). (AR. 32-37, 39-42, 451, 455-62). Plaintiff, who was represented by counsel, and a vocational expert testified at the hearing before the ALJ. (AR 472-515). On June 13, 2011, the ALJ issued a decision finding that Plaintiff was not disabled. (AR. 18-31). The Appeals Council subsequently denied Plaintiff's request for review (AR. 7-14), thereby rendering the ALJ's June 13, 2011 decision the Commissioner's final decision for purposes of judicial review.
On the date of the ALJ's decision, Plaintiff was 42 years old. (AR. 61). He has a high school education and attended three years of college. (AR. 86). His past relevant work is as a border patrol agent, police inspector, "clean up supervisor", and security officer. (AR. 508).
The medical evidence reflects that in May 2008, Plaintiff was hospitalized for multiple small infarcts (ischemic strokes) of the brain. (AR. 256-364). He subsequently developed expressive aphasia. ( See AR. 181). In September 2008, Plaintiff was admitted to the hospital for meningitis. (AR. 127; see also A.R. 131 (Plaintiff's strokes were attributed to vasculitis from meningitis)).
In July 2009, Michael D. Rabara, Psy.D., performed a consultative examination of Plaintiff. (AR. 379-85). Upon testing, Dr. Rabara found that: Plaintiff scored in the low average range of intelligence; verbal comprehension skills were in the low average range; verbal concept formation and reasoning were below average; ability to acquire, retain and retrieve general factual knowledge was below average; capacity to combine parts into wholes on a visual-spatial construction task was low average; capacity to analyze and synthesize abstract visual stimuli was below average; short term rote auditory memory was low average; and "processing speed is borderline and is relative weakness." (AR. 381-82). Dr. Rabara also stated that "these WAIS-IV scales are most sensitive to brain damage, and suggest [Plaintiff] has difficulty processing new raw information. His borderline general memory score further suggests he [sic] ability to acquire new information is impaired." (A.R. 383). Dr. Rabara diagnosed Cognitive Disorder NOS. ( Id. ). Dr. Rabara further concluded that Plaintiff: can remember simple instructions, but may have mild to moderate difficulty remembering detailed instructions and work like procedures; can carry out simple instructions and make simple decisions, but he may have moderate difficulty carrying out detailed instructions, sustaining his concentration, performing tasks within a schedule, working in coordination with others, responding appropriately to work setting changes, responding appropriately to supervisory criticism, and completing a normal workday at a consistent pace; may have mild to moderate difficulty sustaining a routine without special supervision; and may have mild difficulty interacting with the general public and getting along with coworkers. (AR. 385).
On July 29, 2009, Larry Waldman, Ph.D., a non-examining state agency psychologist, concluded that Plaintiff was "moderately limited" in nine out of 20 areas of understanding and memory, sustained concentration and persistence, social interaction, persistence and pace, and adaptation. (AR. 387-89). Dr. Waldman also indicated that Plaintiff had mild problems with memory for procedures and moderate problems with memory for complex directions; moderate problems implementing complex instructions, sustaining his attention, working at a normal pace and with reliability; mild problems in dealing with the public and moderate problems receiving criticism from supervisors; and moderate problems dealing with job changes. (AR. 389).
At the hearing, the VE testified that a hypothetical individual with the limitations assigned by Dr. Rabara would not be able to perform any jobs. (AR. 512-13 ("someone who had moderate difficulty in that many areas, particularly the areas of being able to complete a normal workday without interruption.... A person fitting that profile just is not going to be able to sustain employment.").
The ALJ found that Plaintiff had the following severe impairments: fatigue, nausea, high blood pressure, post stroke, depression, anxiety, and panic attacks. (AR. 23). With regard to Plaintiff's mental impairments, the ALJ gave "great weight" to Dr. Rabara's opinion, citing "the objectivity of the exam, and the consistency of [Dr. Rabara's] opinions with the overall objective medical evidence of record." (AR. 29). The ALJ also pointed out that "Dr. Rabara's conclusions are generally consistent with the State agency-reviewing psychologist, Larry Waldman, Ph.D., who also assessed the claimant capable of simple, basic work." ( Id. ). The ALJ found that Plaintiff could perform less than the full range of light work, with limitations on climbing, balancing, kneeling, crouching, crawling and handling. (AR. 25). The ALJ also found that Plaintiff "can have occasional interaction with the public and co-workers; with only occasional supervision; and is capable of simple, routine and repetitive tasks." ( Id. ). Citing VE testimony that did not take into account the limitations imposed by Dr. Rabara, the ALJ concluded that Plaintiff was unable to return to past work, but he could perform other work such as a small product assembler and packing line worker. (AR. 29-31). Accordingly, the ALJ found that Plaintiff was not disabled. (AR. 31).
The Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §405(g); see also Garrison v. Colvin, ___ F.3d. ___, 2014 WL 3397218, *19 (9th Cir. July 14, 2014).
Defendant concedes that absent from the ALJ's decision is any discussion of the VE testimony that a person falling within the limitations assessed by Dr. Rabara would not be able to sustain employment. (Memorandum (Doc. 22), p. 4). Although Defendant agrees that the ALJ's error resulted in a decision that "is not supported by substantial evidence or free of legal error, she disagrees that the appropriate remedy is reversal for payment of benefits." ( Id. at pp. 5-6). According to Defendant, "[t]he Court should not credit-as-true' any of the evidence, but should instead remand for further proceedings." ( Id. at p. 6). Defendant contends that the credit-as-true rule is inconsistent with the Social Security Act. Further according to Defendant, "[j]ust because an ALJ has failed to articulate legally sufficient reasons for his rejecting certain medical opinions does not mean that no such reasons exist or that substantial evidence does not exist in the administrative record to support the denial." ( Id. at pp. 6-7). However, as Plaintiff points out, Defendant does not ...