Anett Pierce v. Michael Astrue

FILED
NOT FOR PUBLICATION JUN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANETT PIERCE, No. 08-15561
Plaintiff - Appellant, D.C. No. 2:06-CV-02666-NVW
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted December 10, 2009
San Francisco, California
Before: TASHIMA, GRABER and BYBEE, Circuit Judges.
Plaintiff-Appellant Anett Pierce claims that she has been disabled since
September 12, 2001, due to various impairments. She was denied disability
benefits, and an administrative law judge (“ALJ”) determined that she was not
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
disabled. Pierce sued in the District of Arizona, where the court granted the
Commissioner’s motion for summary judgment. We hold that the ALJ erred in his
evaluation of the medical opinion evidence, and we reverse the district court’s
grant of summary judgment and remand with instructions to remand to the ALJ for
computation of benefits.
We review de novo a district court’s order upholding the Commissioner’s
denial of benefits. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). “The
scope of appellate review, however, is limited: this Court must affirm if substantial
evidence supports the Commissioner’s decision and if the Commissioner applied
the correct legal standards.” Id. We “review only the reasons provided by the ALJ
in the disability determination and may not affirm the ALJ on a ground upon which
he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The ALJ found that Pierce retained a residual functional capacity (“RFC”) to
perform unskilled to semi-skilled light exertional work, but that she required a
sit/stand option. In making this determination, the ALJ disagreed with the
statement of Pierce’s examining physician, Dr. Atul Patel, that Pierce was limited
to standing/walking for two hours out of an eight-hour workday and could thus
perform only sedentary work. Based on the ALJ’s calculation of Pierce’s RFC as
well as the testimony of a vocational expert (“VE”), the ALJ determined at step
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five of the five-part disability procedure, 20 C.F.R. § 404.1520(a)(4)(v), that Pierce
could perform jobs existing in significant numbers in the national economy,
including: (1) the semi-skilled jobs of billing clerk, payroll clerk, calculating
machine operator, and customer service representative; and (2) the unskilled jobs
of office helper, unarmed gate guard, and receptionist.
I
The ALJ erred in failing to fully credit Dr. Patel’s findings, in particular his
finding that Pierce was limited to standing/walking only two hours in a workday.
“[T]he Commissioner must provide clear and convincing reasons for rejecting the
uncontradicted opinion of an examining physician.” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995) (internal quotation marks omitted). Here, the ALJ provided no
explanation for why he rejected part of Dr. Patel’s findings, simply concluding that
“[t]he evidence as a whole indicates no objective reason why the claimant could
not perform a limited range of light exertional work with a sit/stand option.” Thus,
the ALJ came far short of providing “clear and convincing reasons.” Id.Furthermore, there is nothing in the ALJ’s decision or the record that
seriously undermines Dr. Patel’s finding that Pierce was limited to
standing/walking only two hours in a workday. Not a single physician who
examined Pierce opined that she could stand/walk more than two hours per day.
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Moreover, Dr. Patel’s finding that Pierce had a normal gait and full range of
motion in her knees simply demonstrates that she could do some walking and
standing; it in no way indicates that she could walk or stand for extended periods,
let alone more than two hours in an eight-hour workday.
II
Because we hold that the ALJ erred in failing to fully credit Dr. Patel’s
testimony, we may either remand for further administrative proceedings or remand
for computation of benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.
1990). A remand for computation of benefits is appropriate “where the record is
fully developed [and thus] a remand for further proceedings is unnecessary.”
Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998).
We hold that the appropriate remedy in this case is a remand for
computation of benefits. Because the ALJ erred in his evaluation of Dr. Patel’s
testimony, we must credit as a matter of law Dr. Patel’s opinion that Pierce was
capable of performing only a sedentary level of work. See Lester, 81 F.3d at 834.
The Medical-Vocational Guidelines, set forth in 20 C.F.R. § 404, Subpart P,
Appendix 2 (“Guidelines”), apply where a claimant is limited to sedentary work as
a result of severe medically determinable impairments. The Guidelines deem a
person of Pierce’s age, educational background, and work history to be
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conclusively disabled unless that person has skills that transfer to skilled or semi-
skilled sedentary work. See Guidelines § 201.14-15.
Both the ALJ and the VE did indeed find that Pierce had skills that would
transfer to certain semi-skilled jobs, including billing clerk, payroll clerk,
calculating machine operator, and customer service representative. However, the
VE testified that these semi-skilled jobs do not have a sit/stand option, and the
Dictionary of Occupational Titles does not indicate that these jobs have a sit/stand
option. Because the ALJ determined that Pierce “require[d] a sit/stand option,” the
ALJ erred in holding that Pierce could perform these semi-skilled jobs.
Of course, the ALJ also determined that Pierce could perform certain
unskilled jobs: office helper, unarmed gate guard, and receptionist. Furthermore,
the VE testified that these unskilled jobs do in fact have a sit/stand option.
However, because these are unskilled jobs, by definition Pierce’s skills are not
transferable to these jobs. Thus, in light of the ALJ’s determination that Pierce is
incapable of performing jobs without a sit/stand option, and the VE’s testimony
that none of the semi-skilled jobs Pierce could perform contain a sit/stand option,
Pierce is incapable of performing any semi-skilled job. Because Pierce has no
transferrable skills and, according to Dr. Patel, is capable of performing only
sedentary work, the Guidelines deem her conclusively disabled. Further
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proceedings are unnecessary. Thus, “[w]e reverse the judgment of the district
court and remand with instructions to remand to the ALJ for an award of benefits.”
Reddick, 157 F.3d at 730.
REVERSED AND REMANDED TO THE ADMINISTRATIVE LAW
JUDGE FOR COMPUTATION OF BENEFITS.
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