Opinion
Civil No. 00-6262-FR
June 11, 2001
Attorneys for Plaintiff :
Kathryn Tassinari, Robert Baron, Cram, Harder, Wells Baron, P.C., Eugene, Oregon
Attorneys for Defendant :
Michael W. Mosman, United States Attorney, William W. Youngman, Assistant United States Attorney, Portland, Oregon
Richard E. Buckley, Special Assistant United States Attorney, Seattle, Washington
OPINION AND ORDER
The matter before the court is the defendant's motion to remand (#20).
The plaintiff, Ovelinda Lee, brings this action pursuant to 42 U.S.C. § 1383(c)(3) of the Social Security Act, to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits under Title II of the Social Security Act.
BACKGROUND
Ovelinda Lee filed an application for a period of disability on November 8, 1996, alleging that the date of the onset of her disability was June 3, 1996. The application was denied initially and upon reconsideration. After a timely request for a hearing, Lee, represented by counsel, appeared and testified before Administrative Law Judge Philip Horton (the ALJ) on October 6, 1998, along with a vocational expert.
On November 25, 1998, the ALJ issued a decision finding that Lee was not disabled within the meaning of the Act. The ALJ found that Lee has a severe impairment, specifically left knee pain secondary to lateral subluxation and tendonitis, and that "claimant's capacity for the full range of light work is found to be reduced by an inability to engage in frequent, forceful pushing or pulling activities with the left lower extremity." TR 24. Based upon the testimony of the vocational expert, the ALJ found that Lee could return to her past relevant work as a waitress. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
FACTS
Ovelinda Lee was born on November 13, 1941 and was fifty-seven years old on the date the ALJ issued his decision. Lee has a tenth grade education and past relevant work as a waitress, lumber grader, and laundry worker.
Medical documents indicate that Lee has a history of chronic left knee pain secondary to lateral subluxation and tendonitis which constitutes a severe impairment. TR 21. On June 12, 1996, Lee's treating physician noted that he has encouraged Lee to "seek employment where she is not standing full-time." TR 267.
Medical documents further show that Lee has episodic chest tightness. Lee's cardiologist stated in a letter dated November 19, 1998, but submitted to the ALJ after the administrative hearing, that Lee has "atherosclerosis involving her aortic root," and that she could not perform any kind of work activity "other than the most sedentary for any sustained amount of time." TR 332.
CONTENTIONS OF THE PARTIES
Ovelinda Lee contends that the ALJ erred by 1) by concluding that she retained the residual functional capacity to perform her past relevant work as a waitress; 2) by rejecting the limitations assessed by her orthopedic doctor; 3) by rejecting the opinion of her cardiologist that she could not perform any kind of work other than the most sedentary for any sustained amount of time; 4) by failing to give clear and convincing reasons for rejecting her testimony; and 5) by failing to apply the grids that show she is disabled.
The Commissioner concedes that the conclusion of the ALJ, that Lee can return to her past relevant work as a waitress, is deficient in that 1) the testimony of the vocational expert was inconsistent; and 2) the hypothetical question posed to the vocational expert did not accurately reflect Lee's residual functional capacity. The Commissioner contends that this case should be remanded to the ALJ so that additional testimony from a vocational expert may be obtained and thereby fully develop the record.
Lee contends that the record supports the conclusion of the ALJ that she is limited to light or sedentary work which prevents her from performing her past relevant work as a waitress. Lee contends that she is limited to light or sedentary work, and the grids should be applied to find that she is disabled. Lee argues that the decision of the Commissioner should be reversed and the case remanded for the payment of benefits.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish entitlement to disability benefits. To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520, 416.920. At the first step, the plaintiff must prove that she has not engaged in substantial gainful activity after the alleged onset date of her disability. At the second step, the plaintiff must prove that she has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If, at the third step, the plaintiff proves that her impairment or combination of impairments meets or equals a listed impairment, she is automatically found disabled regardless of age, education, or work experience. If the plaintiff cannot prevail at the third step, she must proceed to the fourth step, where she must prove that she is unable to perform her past relevant work. At the fifth step, the burden shifts to the Commissioner to establish that there is other work available in significant numbers in the national economy that the plaintiff can perform. If the Commissioner establishes that the plaintiff can perform other work, then she is found "not disabled." Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The decision whether to remand for further proceedings or to award benefits is within the discretion of the court. See McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Generally, the award of benefits is appropriate where no useful purpose would be served by further administrative proceedings or when the record has been fully developed and there is not sufficient evidence to support the conclusion of the ALJ. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989).
RULING OF THE COURT
The Commissioner concedes that the conclusion of the ALJ, that Ovelinda Lee can return to her past relevant work as a waitress, is not supported by the record. The evidence in this case establishes by substantial evidence that Lee's impairments prevent her from performing her past relevant work as a waitress and limit her residual functional capacity to light or sedentary work. Lee is of advanced age and has limited education and no skills transferable to skilled or semi-skilled work. Application of the Medical-Vocational Guidelines direct a finding of disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.02 (light work) or Rule 201.02 (sedentary work). While the results of the application of the grids are presumptive and not conclusive, the court finds that there is substantial evidence in the record to support the conclusion directed by the application of the grids that Lee is unable to perform her past relevant work and is disabled. No useful purpose would be served by further administrative proceedings.
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for an award of benefits.
JUDGMENT
Based on the record,
The decision of the Commissioner is hereby REVERSED, and this case is REMANDED for an award of benefits.