Opinion
MEMORANDUM OPINION AND ORDER OF REMAND
CHARLES F. EICK, Magistrate Judge.
Pursuant to sentence four of 42 U.S.C. section 405 (g), IT IS HEREBY ORDERED that Plaintiff's motion for summary judgment is denied, Defendant's motion for remand is granted, and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on June 26, 2006, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before Magistrate Judge Johnson on August 7, 2006.
Plaintiff and Defendant filed the "Parties' Joint Stipulation for Disposition of Claim for Relief from Decision of the Commissioner" ("Joint Stipulation") on May 11, 2007. In the Joint Stipulation, both parties agreed that the present record is insufficient to support the Commissioner's denial of benefits. Plaintiff seeks an order for the immediate payment of benefits, while Defendant seeks a remand for further administrative proceedings.
On July 23, 2009, this case was transferred from Magistrate Judge Johnson to Magistrate Judge Eick. On August 5, 2009, the parties filed a consent to proceed before Magistrate Judge Eick.
BACKGROUND
By Judgment and Order entered March 16, 2005, Magistrate Judge Johnson reversed a prior administrative decision in Plaintiff's case, holding that the Administrative Law Judge ("ALJ") had erred in deeming not fully credible Plaintiff's subjective complaints of pain (Administrative Record ("A.R.") 222-35). At that time, Magistrate Judge Johnson remanded the matter for further administrative proceedings, ordering that the Administration credit Plaintiff's subjective complaints of pain as a matter of law. Id.
On remand, the ALJ failed to credit in the hypothetical questioning of the vocational expert certain of Plaintiff's pain-related subjective complaints. Specifically, the hypothetical questioning failed to credit Plaintiff's complaints that she can only walk half a block, stand for 10 minutes at a time, and sit for 20 minutes at a time (A.R. 255-57). In response to the ALJ's deficient hypothetical questioning, the vocational expert identified the light work jobs of office helper, bench packer, and bench inspector as jobs Plaintiff assertedly could perform (A.R. 257-58). Plaintiff's counsel cross-examined the vocational expert, but did not pose a hypothetical question that included the subjective complaints omitted by the ALJ (A.R. 258-60).
DISCUSSION
When there exists error in an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura , 537 U.S. 12, 16 (2002) (citations and quotations omitted); compare Benecke v. Barnhart , 379 F.3d 587, 595 (9th Cir. 2004) ("[I]n the unusual case in which it is clear from the record that the claimant is unable to perform gainful employment in the national economy, even though the vocational expert did not address the precise work limitations established by the improperly discredited testimony, remand for an immediate award of benefits is appropriate."); Ghokassian v. Shalala , 41 F.3d 1300, 1304 (9th Cir. 1994) ("[G]enerally, we direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed") (citations and quotations omitted).
In this Court's view, the instant case does not present one of the "rare" or "unusual" circumstances in which an order for the immediate payment of benefits is appropriate. Plaintiff's entitlement to benefits remains unclear, and additional administrative proceedings could remedy the defects in the most recent administrative decision. Specifically, it is not clear from the present record that a person limited to walking for half a block, standing for 10 minutes at a time and sitting for 20 minutes at a time would be incapable of performing the light work jobs identified by the vocational expert. Indeed, the vocational expert volunteered that "these jobs would afford an opportunity to vary sitting, standing and walking throughout a normal work day" (A.R. 257). Under the specific circumstances of this case, therefore, remand is appropriate. Id .; see, e.g., Page v. Commissioner, 304 Fed App'x 520 at *2 (9th Cir. Dec. 17, 2008) (where, after crediting the plaintiff's testimony, the record was unclear whether the plaintiff would be disabled from all employment, remand was appropriate); Alfaro v. Astrue, 2009 WL 425627 at *6 (E.D. Wash. Feb. 13, 2009) ("It is not clear from the record that Plaintiff is disabled; therefore, remand for additional proceedings is required."); compare Moisa v. Barnhart , 367 F.3d 882, 887 (9th Cir. 2004) (remand for award of benefits is appropriate where "it is clear from the record that the ALJ would be required to find [the claimant] disabled if [the claimant's] testimony were credited").
Plaintiff cites cases from other circuits in arguing that a court should grant benefits where the delay occasioned by repeated remands has become "unconscionable, " or where the Administration has displayed "obduracy" in complying with the law of the case (Joint Stipulation at 5-6). However, it is uncertain whether courts may grant disability benefits merely because a claimant has been waiting a long time or because the Administration has been obdurate. In a case cited by Plaintiff, the First Circuit declined to decide when delay alone might justify the granting of benefits. Seavey v. Barnhart , 276 F.3d 1, 13 (1st Cir. 2001). The Seavey Court observed, however, that "the Supreme Court has noted that Congress was fully aware of the serious delays in resolution of disability claims yet declined to impose deadlines..." Id. at 13 n.14 (citing Heckler v. Day , 467 U.S. 104 (1984). Although Plaintiff argues that the Seventh Circuit automatically awarded disability benefits based on the Administration's obduracy in Wilder v. Apfel , 153 F.3d 799 (7th Cir. 1998) ("Wilder"), the Seventh Circuit itself later rejected such an interpretation of Wilder. "Wilder did not hold, however, that obduracy alone could ever warrant an award of benefits." Briscoe ex rel. Taylor v. Barnhart , 425 F.3d 345, 356 (7th Cir. 2005). According to the Seventh Circuit:
It remains true that an award of benefits is appropriate only if all factual issues have been resolved and the record supports a finding of disability... This is so because a court does not have the authority to award disability benefits on grounds other than those provided under 42 U.S.C. § 423. Subsection (a) (1) (E) requires that the claimant must be disabled under the Act in order to qualify for benefits. As the Supreme Court stated in Office of Personnel Management v. Richmond, payment from the U.S. Treasury must be authorized by a statute. 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). Obduracy is not a ground on which to award benefits; the evidence properly in the record must demonstrate disability. Id. at 356-57 (citations and quotations omitted).
Although the Ninth Circuit has not spoken directly to these issues, the Circuit has appeared to suggest that delay and obduracy sometimes should factor into the analysis. See, e.g., Benecke v. Barnhart , 379 F.3d 587, 595 (9th Cir. 2004) ("Allowing the Commissioner to decide the issue again would create an unfair heads we win; tails, let's play again' system of disability benefits adjudication.... Remanding a disability claim for further proceedings can delay much needed income for claimants who are unable to work and are entitled to benefits, often subjecting them to tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on remand") (citations and quotations omitted).
This Court need not and does not determine whether, in an appropriate case, the law would permit the granting of disability benefits to a likely non-disabled claimant based on the Administration's unconscionable delay or obduracy. In the present case, the Administration acted relatively promptly following Magistrate Judge Johnson's prior remand. For the most part, the Administration did not evidence obduracy in complying with the law of the case. For example, in examining the medical expert, the ALJ stated:
Regrettably, the Court has been responsible for most of the post-remand delay the parties have experienced.
This matter has been up to the Federal District Court, and at the Federal District Court, there was a discussion about how much weight the Agency should give to the claimant's testimony about her condition. She testified previously that - and this was in the hearing in 2004, that she can walk a half a block, she can stand for 10 minutes at a time, and sit for 20 minutes at a time. And what I want you to know is that I want you to give that full credibility and I want you to give that your full weight of consideration (A.R. 247).
Similarly, the ALJ acknowledged in the written decision that the "District Court credited [Plaintiff's] pain complaints as a matter of law and remanded the case with instructions to re-assess the claimant's residual functional capacity as it is affected by her subjective complaints of pain and to obtain vocational exert [sic] testimony in analyzing the claimant's employability" (A.R. 172). The ALJ misapplied Magistrate Judge Johnson's remand directive by failing to include certain specific limitations in the hypothetical questioning of the vocational expert, but the ALJ did not wholly ignore or flaunt Magistrate Judge Johnson's directive. Therefore, even if, in an appropriate case, factors of delay and obduracy properly could tip the balance of the analysis in favor of an immediate award of benefits rather than a remand for further proceedings, consideration of those factors does not tip the balance in the present case.
Although it was not the burden of Plaintiff's counsel to do so, counsel could have remedied the ALJ's omissions at the time of the hearing by posing an alternative hypothetical question to the vocational expert.
CONCLUSION AND ORDER
For all of the foregoing reasons, this matter is remanded for further administrative action consistent with this Opinion. Specifically, the Appeals Council shall direct an ALJ to:
Give further consideration to Plaintiff's maximum residual functional capacity during the entire period at issue, provide appropriate rationale with specific references to evidence of record in support of assessed limitations, and clearly articulate Plaintiff's maximum residual functional capacity in terms consistent with 20 CFR 416.945. Furthermore, in accordance with the order of remand by the United States District Court for the Central District of California, Western Division, filed March 15, 2005, the Administrative Law Judge shall credit as true and as a matter of law, Plaintiff's subjective complaints that she can walk only half a city block, she can stand for only ten minutes at a time, and she can sit for only twenty minutes at a time. These limitations must be incorporated into the assessment and findings for Plaintiff's residual functional capacity.
Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base, and as necessary, to determine whether Plaintiff has acquired any skills that are transferable to other occupations under the guidelines in Social Security Ruling 82-41. The hypothetical questions must clearly reflect the specific capacity limitations established by the record as a whole and the limitations incorporated into Plaintiff's residual functional capacity, credited as true and as a matter of law. The Administrative Law Judge shall ask the vocational expert to identify examples of appropriate jobs, if any, and to state the incidence of any such jobs in the national economy. Further, before relying on the vocational expert evidence, the Administrative Law Judge shall identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
Thus, the Court has adopted the substance (and most of the phrasing) of the remand order proposed in Defendant's portion of the Joint Stipulation.
LET JUDGMENT BE ENTERED ACCORDINGLY.