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JACKS v. BARNHART

United States District Court, N.D. California


September 12, 2004.

THOMAS D. JACKS, Plaintiff,
v.
JOANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

Plaintiff's motion for summary judgment has been granted and this matter has been remanded to the Commissioner for payment of benefits. Judgment is entered accordingly.

IT IS SO ORDERED AND ADJUDGED. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT, AND REMANDING FOR PAYMENT OF BENEFITS
  Plaintiff Thomas D. Jacks brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by defendant Commissioner of Social Security Jo Anne B. Barnhart, in which the Commissioner denied plaintiff's claim for disability insurance benefits under Title II of the Social Security Act. Plaintiff moved for summary judgment and defendant filed a cross-motion for summary judgment. This Court reviews the Commissioner's decision to determine whether it is free of reversible error and supported by substantial evidence. Upon review, the Court GRANTS plaintiff's motion for summary judgment, DENIES defendant's cross-motion for summary judgment, and REMANDS for payment of benefits.

  BACKGROUND

  1. Plaintiff's history and medical condition

  Plaintiff Jacks was born on December 15, 1947. Tr. at 115. He has a high school education and has worked as both a telephone line splicer and a road paving operator. Tr. at 17, 55. Secondary to degenerative arthritis of the right hip, he underwent surgical hip replacement in December 1994 by Dr. James M. Talcott, an orthopedic surgeon. Tr. at 40. In 1998, the hip prosthesis may have been damaged in an automobile accident caused by an acute allergic reaction to a bee sting. Tr. at 202-210. Following the hip replacement, he continued to work part time at the paving company until January 1, 2000. Charles Hall, plaintiff's supervisor at the paving operation, testified that after the operation, plaintiff was unable to work more than two to three days per week due to pain, and that his ability to perform some of his prior duties, such as lying down on pavement to maintain equipment, was hindered. Tr. at 63-68. Hall assigned plaintiff to "light duty" tasks such as replacing lights and delivering parts, and stated that the company "didn't force him" to report to work on certain days "because we knew that he was hurting." Tr. at 64, 66.

  After the hip replacement, plaintiff was treated by Dr. Talcott three times. On January 31, 2000, more than five years after the surgery, Dr. Talcott observed muscle wasting in plaintiff's right leg and a leg length discrepancy of three quarters of an inch. Tr. at 231. Dr. Talcott ordered x-rays and diagnosed "painful right hip prosthesis," noting that plaintiff "is no longer able to do the job working for a paving company." Tr. at 231. Plaintiff was treated by Dr. Talcott again on May 2, 2001 in the emergency room of the Queen of the Valley Hospital in Napa, due to an acute onset of shingles in the area of the hip replacement. Tr. at 252. Although Dr. Talcott did not indicate on the examination report that plaintiff reported pain during this visit, an x-ray revealed that the acetabular angle had grown "very steep" and that three of the surgically implanted screws had been sheared off since the January 2000 x-ray. Tr. at 251-252. The x-ray technician noted on the radiology report that the x-ray had been ordered due to pain. Tr. at 251. Dr. Talcott also noted probable reconstruction of the hip in the future. Tr. at 252. 2. Procedural history

  On December 15, 1999, plaintiff filed a claim for disability insurance benefits that was subsequently denied. Pl.'s Mot. for Summ. J. at 1-2. Following plaintiff's request for reconsideration, the Social Security Administration (SSA) notified plaintiff that he was again denied benefits. Id. at 2. At plaintiff's request, a hearing was held before Administrative Law Judge Catherine Lazuran on August 30, 2001. Id. At the close of the hearing, plaintiff's attorney requested that plaintiff be sent to Dr. Talcott for another evaluation in order to clarify Dr. Talcott's opinion as to whether plaintiff's condition limited his ability to "sit, stand, walk and the like." Tr. at 75. ALJ Lazuran agreed, noting Dr. Talcott's May 2001 report made medical findings but did not relate these to plaintiff's vocational abilities. Id.

  Plaintiff was not directed to see Dr. Talcott for another examination, but ALJ Lazuran instead sent Dr. Talcott a "Medical Source Statement of Ability to Do Work-Related Activities (Physical)" (MSS) questionnaire that he returned to the ALJ on October 22, 2001. Tr. at 253-59. On November 29, 2001, ALJ Lazuran issued a decision finding plaintiff not disabled at "Step Four" of the SSA Sequential Evaluation Process. Id. In her decision, she specifically rejected Dr. Talcott's October 2001 MSS. Tr. at 18-20. The Appeals Council declined to review the ALJ's decision. Tr. at 5.*fn1 Plaintiff now seeks judicial review pursuant to 42 U.S.C. § 405(g). LEGAL STANDARD

  The Social Security Act authorizes judicial review of final decisions made by the Commissioner. 42 U.S.C. § 405(g). Here, because the Appeals Council declined review, the decision of the ALJ stands as the final decision of the Commissioner. 20 C.F.R. § 416.1481. The court may enter a judgment affirming, modifying or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g).

  Factual findings of the Commissioner are conclusive if supported by substantial evidence. Id. The court may set aside the Commissioner's final decision when that decision is based on legal error or where the findings of fact are not supported by substantial evidence in the record taken as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999). Even if substantial evidence supports the Commissioner's factual findings, the decision must be set aside if improper legal standards were applied in weighing the evidence and reaching the decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Legal error lies if an ALJ rejects a treating physician's uncontradicted opinion without providing "clear and convincing" reasons supported by the record. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where the ALJ fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, a reviewing court will credit the physician's opinion as a matter of law. See Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989).

  DISCUSSION

  Plaintiff argues that the ALJ committed legal error in rejecting the October 2001 MSS submitted by Dr. Talcott, which plaintiff contends supported a finding of disability. Because the ALJ did not offer "clear and convincing" reasons for rejecting the report, plaintiff contends that the Court should find him disabled as a matter of law. Pl's. Mot. for Summ. J. at 18. Defendant responds that the ALJ presented specific, legitimate reasons for discounting Dr. Talcott's October 2001 report. Def.'s Mot. for Summ. J. at 4. This Court must decide whether the ALJ committed legal error in rejecting the October 2001 MSS. If so, the Court must also determine: (1) whether the MSS, combined with other evidence in the record, is sufficient for this Court to find plaintiff disabled at "step four" of the SSA decision-making process as a matter of law; and, if so, (2) whether the record contains sufficient evidence to render a decision as to whether plaintiff is disabled as a matter of law at "step five" of the SSA process.

  1. Dr. Talcott's October 2001 MSS report was improperly rejected by the ALJ

  A. The MSS Report was clinically supported by the May 2001 examination

  Defendant contends that Dr. Talcott's opinion in the October 2001 MSS can be rejected if it is unsupported by the doctor's own examination record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The ALJ reasoned that the MSS was not supported by clinical findings because there was no contemporaneous examination, and the May 2001 examination report did not indicate pain, whereas the October 2001 MSS stated that plaintiff had been in pain. Tr. at 20-21.

  However, the ALJ is incorrect that the May 2001 exam did not provide a clinical basis for plaintiff's pain. Although Dr. Talcott indicated no pain on his examination report, the radiology technician noted that Dr. Talcott ordered the x-ray because of hip pain. Tr. at 251. The ALJ did not account for this discrepancy in her analysis, stating only that the May 2001 report did not indicate pain and the x-ray showed no dislocation. Tr. at 20-21. If Dr. Talcott indicated a finding of no pain on his examination report, but then immediately ordered an x-ray due to pain, this suggests that a typographical or transcription error may have been made on the examination report, since there would be no apparent reason to order an x-ray for an otherwise unremarkable physical exam. Moreover, other components of the May 2001 exam neglected by the ALJ in her findings support Dr. Talcott's finding of pain on the MSS. Although the ALJ correctly states that the x-ray did not reveal dislocation of the hip, she makes no mention of the May 2001 x-ray finding that three of the surgical screws had been "sheared off," or dislodged, and that the acetabular angle had become "very steep." Tr. at 252. Dr. Talcott stated that these conditions indicated that the hip replacement was "failing" and that reconstruction was imminent. Tr. at 252. These components of the examination record support Dr. Talcott's finding that the plaintiff had been in pain.

  The ALJ also noted that the MSS was inconsistent with the January 2000 exam, when plaintiff was said to have pain but no dislocation of the hip. Tr. at 20. However, in assessing whether the MSS was supported by the examination record, only the May 2001 exam report is necessary. Her comparison to the January 2000 exam is immaterial, since any inconsistency would better be described as a change in plaintiff's condition over time. The screws had been sheared off at some point between the January 2000 x-ray and the May 2001 x-ray. Tr. at 252.

  Finally, as plaintiff correctly notes, the ALJ "unfairly" states that the October MSS is meritless because it was not accompanied by an exam. Pl.'s Reply at 2-3. The ALJ merely asked Dr. Talcott to fill out the form, without requesting another exam, and apparently without explaining the particular evidentiary ambiguity between the exam report and the x-ray report. Id. at 3. The ALJ directed Dr. Talcott to clarify the May 2001 exam with regard to plaintiff's vocational limitations only. Tr. at 16. She then proceeded to treat the MSS as though Dr. Talcott was divining the patient's condition as it stood in October 2001, without actually seeing the patient: "It is not clear what findings Dr. Talcott used in opining that claimant had the limits referred to in October 2001." Tr. at 20. The October MSS should be treated as contemporaneous with the May 2001 exam, because it was presented to Dr. Talcott as an opportunity to clarify his findings from that exam with respect to plaintiff's vocational limitations. The indication of pain on the MSS is thereby consistent with the clinical findings from the May 2001 exam when viewed as a whole.

  B. The ALJ committed legal error by not contacting Dr. Talcott to resolve the apparent ambiguity between the examination report and the x-ray report

  In her findings, the ALJ did not mention the report of pain on the May 2001 x-ray report, as explained above. If she was aware of the discrepancy, she did not bring this to the attention of Dr. Talcott when she asked him to submit the MSS for "clarification of claimant's residual functional capacity." Tr. at 16. Additionally, if the ALJ perceived a conflict or ambiguity between the May 2001 exam and the MSS with regard to whether plaintiff was in pain, she made no effort to contact Dr. Talcott in order to resolve it. Plaintiff correctly states that the ALJ must contact the treating provider in order to obtain such clarification: "[The ALJ] will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved. . . ." 20 C.F.R. § 404.1512(e) (emphasis added). Here, a conflict or ambiguity exists in either situation: as between the May 2001 x-ray report and examination report, or as between the ALJ's perception of the May 2001 findings and the October 2001 MSS. The ALJ committed legal error by not seeking clarification from Dr. Talcott in either instance.

  Defendant urges that the proper standard in determining the ALJ's obligation to contact Dr. Talcott is that used for consultative, rather than treating physicians: "If the report is inadequate or incomplete, we will contact the medical source who performed the consultative examination, give an explanation of our evidentiary needs, and ask that the medical source furnish the missing information or prepare a revised report." 20 C.F.R. § 404.1919p(b) (emphasis added). Under this standard, argues defendant, the ALJ was under no duty to obtain clarification from Dr. Talcott, because the report was not inadequate, but inconsistent with previous findings. Def.'s Mot. for Summ. J. at 4. The distinction between inadequate and inconsistent does not hold. As previously explained, the MSS is not in fact inconsistent with Dr. Talcott's May 2001 opinion, and is supported by it when viewed in its entirety. A physician's report is inadequate if it hinders the trier of fact in making a decision regarding a claimant's disability. See Thomas, 278 F.3d at 957. Here, the ALJ would not have been able to render a proper finding as to plaintiff's disability without reconciling the two reports, since one supported a finding of disability and the other, in her view, did not. Regardless, the first standard applies because Dr. Talcott is a treating physician. As discussed below, a "consultative physician" generally connotes a nonexamining physician retained by the Commissioner for the purpose of evaluating a claimant's medical records. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989).

  C. The ALJ's additional reasons for rejecting the MSS report fail to meet the "clear and convincing" standard

  The ALJ cannot reject a treating physician's uncontroverted*fn2 opinion without providing "clear and convincing" reasons supported by the record. See Lester, 81 F.3d at 830. The ALJ indicated that her primary reason for rejecting the MSS was "because it is not consistent with findings in his reports of examining the client." Tr. at 20. She expressed several other concerns throughout her opinion, but the extent to which she weighed each of these additional concerns in rejecting the MSS is not certain. She stated that (1) it was unclear to her that Dr. Talcott had treated plaintiff often enough to be his "treating physician"; (2) Dr. Talcott did not make clear his opinion of the onset date and expected duration of the injury; and (3) it appeared that Dr. Talcott provided the MSS out of sympathy or because plaintiff requested it of him. Of the three rationales, addressed in turn below, none qualifies as a "clear and convincing" reason for rejecting the MSS.

  (1) Dr. Talcott's status as a treating physician

  In the Ninth Circuit, disability benefits cases distinguish among three types of medical professionals: (1) those who treat the claimant (treating physicians), (2) those who examine but do not treat the claimant (examining physicians), and (3) those who neither examine nor treat the claimant (nonexamining physicians). See, e.g., Lester, 81 F.3d at 830. A "treating source" is defined as

. . . your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).
20 C.F.R. § 404.1502. Defendant implies that Dr. Talcott is a consultative, or nonexamining physician, rather than a treating physician, by citing 20 C.F.R. § 404.1519p(b) as the source of the ALJ's obligation for reviewing physician reports. See Def.'s Mot. for Summ. J. at 4. This assumption is apparently based on the ALJ's statement that "Dr. Talcott has seen the claimant infrequently. It is unclear if Dr. Talcott has seen the claimant enough to be a treating doctor." Tr. at 19. Again, a consultative physician is a reviewer retained by a government agency to assess medical records, who has never seen the claimant. See Magallanes, 881 F.2d at 752. This does not describe Dr. Talcott, who performed the original hip replacement surgery and has conducted all follow-up visits. Plaintiff correctly observes that here, "the only medical evidence regarding the disabling impairment is provided by Dr. Talcott's office. So, either he was the treating physician, or there was no professional in that capacity." Pl.'s Mot. for Summ. J. at 13.

  The ALJ did not demonstrate how plaintiff's pattern of visits to Dr. Talcott fell short of an "ongoing treatment relationship," but merely described the pattern as infrequent. Id. In her decision, the ALJ noted that "Dr. Talcott has apparently seen the claimant only in January 2000 and May 2001," despite evidence in the hearing record that Dr. Talcott performed the original hip replacement surgery in 1994, had seen plaintiff again in July of 1997, and had consulted with plaintiff via telephone since May 2001 about the impending follow-up surgery to repair his failing hip replacement. Tr. at 40, 47, 42. Also, plaintiff told the ALJ at the hearing that although he had constant pain, he did not see Dr. Talcott between July 1997 and January 2000 because he was "scared of doctors." Tr. at 47. The ALJ's determination that Dr. Talcott's status as a treating physician was "unclear" appears to be based on an erroneous finding of fact that he only saw plaintiff twice. Dr. Talcott should be regarded as a treating physician.

  (2) Onset date and duration of injury

  Plaintiff admits that the ALJ was correct to state that Dr. Talcott at no time indicated his opinion as to the onset or duration of plaintiff's injury. Pl.'s Mot. for Summ. J. at 15-16. However, if the ALJ required such information, she was under an obligation to obtain that information from Dr. Talcott: "We will seek additional evidence or clarification from your medical source when the report . . . does not contain all the necessary information." 20 C.F.R. § 404.1512(e). The MSS given to Dr. Talcott in October 2001 does not ask him to provide this information, nor was this information requested of him at another time. Tr. at 253-259. Plaintiff is correct that "The ALJ cannot reject Dr. Talcott's medical opinion because he failed to provide information that she did not request." Pl.'s Mot. for Summ. J. at 16. This reasoning is not "clear and convincing."

  (3) ALJ's perception that Dr. Talcott provided the MSS out of sympathy or at plaintiff's request

  The ALJ's finding that Dr. Talcott provided the opinion in the October 2001 MSS "either out of sympathy for the claimant or because claimant requested it," Tr. at 20, is without merit. Neither she nor defendant offered evidence that plaintiff had contact with Dr. Talcott about the October 2001 MSS to request a certain outcome. Defendant argues that the ALJ properly rejected the MSS based on her perception that it had been rendered out of sympathy because the MSS was grounded on "[p]laintiff's subjective complaints of pain." Def.'s Mot. for Summ. J. at 4. As explained, the MSS finding of pain is properly supported by clinical evidence from the May 2001 examination, and not based solely on plaintiff's subjective complaints of pain. Again, this is not a "clear and convincing" reason for rejecting an uncontroverted treating physician opinion.

  In sum, when taken as a whole, the May 2001 examination findings do support the October 2001 MSS. The ALJ erred in considering only selected parts of the May 2001 exam, rather than evaluating the whole. If she had a lingering concern about consistency stemming from the typographical discrepancy, she should have explicitly directed Dr. Talcott to account for it, rather than merely sending him the generic MSS form with no specific instructions as to the apparent inconsistency. Additionally, none of the ALJ's other reasons are sufficiently "clear and convincing" to reject Dr. Talcott's October 2001 MSS.

  2. Dr. Talcott's October 2001 MSS report, uncontroverted by substantial evidence in the record, meets the requirements of "step four" as a matter of law

  The ALJ evaluated plaintiff's disability status according to the following sequential five-step process established by the Social Security Administration.*fn3 First, the ALJ must determine whether the claimant is engaged in substantial gainful activity (step one). See 20 C.F.R. § 404.1520(b). If not, the ALJ must then determine whether the claimant suffers from a "severe" impairment (step two). See 20 C.F.R. § 404.1520(c). Third, if the claimant's impairments meet or equal a "listed impairment" in Appendix 1, the ALJ will find him disabled without further consideration of his age, education, and work experience (step three). See 20 C.F.R. § 404.1520(d). If the claimant does not present a listed impairment, the ALJ will then determine whether the impairment prevents the claimant from returning to "past relevant work" (step four). See 20 C.F.R. § 404.1520(e). If past relevant work cannot be performed, the claimant is entitled to benefits unless the ALJ can demonstrate that claimant could perform other jobs based on the claimant's "residual functional capacity" (step five). See 20 C.F.R. § 404.1520(f).

  Here, the ALJ found that plaintiff had not engaged in substantial gainful activity for the relevant time period, and that plaintiff's impairment was "severe." Tr. at 21. At step three, the ALJ found that plaintiff's impairment did not meet the criteria for Listing 1.03, the relevant "listed impairment" in Appendix 1.*fn4 Tr. at 17-18, 21. Proceeding to step four, the ALJ determined that plaintiff had the residual functional capacity (RFC) to perform his past relevant work as a road roller operator, and was therefore not entitled to benefits. Tr. at 21. The ALJ based this RFC on findings from Dr. Talcott's January 2000 report, and the report of the agency doctors who reviewed it. Tr. at 19. The ALJ thus determined that plaintiff had an RFC by which he could "lift 30 pounds occasionally and 10 pounds frequently, and stand, walk or sit for six hours in an eight-hour workday, can occasionally climb, balance, stoop, kneel, crouch or crawl . . ." Tr. at 19. The ALJ rejected the May 2001 examination report and the October 2001 MSS support in reaching this RFC.

  In the October 2001 MSS, Dr. Talcott opined that plaintiff could lift no more than 20 pounds occasionally, could lift less than 20 pounds frequently, could stand or walk less than 2 hours in an 8-hour work day, could sit less than 2 hours in an 8-hour workday, was limited in pushing or pulling of the lower extremities,*fn5 required a hand-held device (such as a cane) for ambulation, and should never climb, balance, kneel, crouch, crawl, or stoop. Tr. at 253-255. Had these findings been applied, as the ALJ admitted, the result would have been "less than a sedentary RFC." Tr. at 19. That designation would render plaintiff unable to do his past relevant work, which requires the higher RFC of "light exertional work." Tr. at 19. Additionally, the vocational expert testified that plaintiff had no skills that were transferrable to "anything lighter than light [exertional work]" as would be required of a road roller operator. Tr. at 70. Notwithstanding the ALJ's exclusion of the October MSS, the vocational expert also attested that if a claimant with a light exertional RFC also needed "an option to sit or stand," he or she would not be able to do any of plaintiff's past relevant work, but would be limited to "light and sedentary unskilled" jobs, based on his lack of transferable skills. Tr. at 72. Therefore, if the MSS had been properly credited, plaintiff would have been found unable to do his past relevant work.

  If, as here, the ALJ fails to provide adequate reasons for rejecting the opinion of a treating physician, the court will credit that physician's opinion as a matter of law. See Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989). As discussed, the ALJ did not offer "clear and convincing" evidence for rejecting Dr. Talcott's conclusion that plaintiff could not perform past work. The MSS is considered uncontroverted in the record because the agency reviewers only commented on the January 2000 report. Therefore, the Court accepts as a matter of law Dr. Talcott's conclusions in the October 2001 MSS report, which indicates that plaintiff cannot perform his past work.

  3. Dr. Talcott's October 2001 MSS report, along with the vocational expert's testimony, suffices to find plaintiff disabled at "step five" as a matter of law

  After the plaintiff succeeds in demonstrating that he is unable to return to his past work because of a disability, the burden shifts to the Secretary to show that the plaintiff can perform other substantial gainful work. See Jones v. Heckler, 760 F.2d 993 (9th Cir. 1985); 20 C.F.R. § 404.1520 (f). In determining whether other jobs are available, the ALJ will consider a claimant's residual functional capacity. 20 C.F.R. § 404.1520 (f)(1). Regardless of RFC level, a claimant must be able to function in a work setting "on a regular and continuing basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Social Security Ruling (SSR) 96-8p. "An ability to keep to an 8-hour a day, 5-day a week schedule without accumulating too many absences is a pre-requisite for many jobs. It therefore is a factor in determining a claimant's residual functional capacity." Rollins v. Massanari, 261 F.3d 853, 859 (9th Cir. 2001) (citing SSR 96-8p); see also Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998) (holding that it was legal error for ALJ to fail to account for claimant's capacity to "undertake sustained work activity").

  The ALJ's evaluation of residual functional capacity failed to address claimant's ability to undertake sustained work activity. We have already accepted Dr. Talcott's October 2001 MSS as a matter of law for the purposes of assessing plaintiff's RFC with regard to step four. In the MSS, Dr. Talcott concluded that plaintiff can stand or walk for less than two hours a day, sit for less than two hours a day, and requires a lying position for the remainder of the day. Tr. at 253-255. Hence, plaintiff can work for no more than four hours a day, at a job where he could stand or walk for two hours and sit for two hours. The ALJ asked the vocational expert only if there were other jobs available where a claimant would have the option of sitting or standing, to which he replied in the affirmative. Tr. at 72-73 (fourth hypothetical question). She did not limit the hypothetical to a claimant who can only work four hours in a workday. Thereafter, in response to a question from plaintiff's attorney, the vocational expert testified that a claimant would not be employable at any jobs if required to lie down two to three hours a day, regardless of RFC level. Tr. at 74.

  This Court finds the vocational expert's response to plaintiff's attorney dispositive in ascertaining whether other jobs are available to plaintiff under step five. The vocational expert's answer to the ALJ's fourth hypothetical question did not constitute substantial evidence that plaintiff was not disabled because the hypothetical did not include the four-hour workday restriction supported by the MSS. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (holding that hypothetical questions posed to a vocational expert must set out all the limitations and restrictions of the particular claimant); see also Moore v. Halter, 168 F.Supp. 2d 1137, 1141 (N.D. Cal. 2001) (same). In the absence of any evidence offered by the ALJ to contradict the vocational expert's testimony, she has not met her burden to show that other jobs are available. 20 C.F.R. § 404.1520(f). Accordingly, this Court determines that plaintiff's impairment prevents him from doing any other work, as required by step five of the SSA disability evaluation process.

  CONCLUSION

  Per sentence four of 42 U.S.C. § 405(g), this 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." If the claimant would have been found disabled had certain testimony in the record been credited, "we will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988). Rather, that testimony is credited as a matter of law, Id.; see also Lester, 81 F.3d at 834. Where the evidence, when it is given the effect required by law, demonstrates that plaintiff meets all five steps of the SSA disability evaluation process, no purpose would be served by remanding for further adjudicatory proceedings by the agency so the matter is remanded simply for payment of benefits. See Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993) (remanding for payment of benefits where record established that claimant satisfied the five-step process at step three).

  For the foregoing reasons and for good cause shown, plaintiff's motion for summary judgment is hereby GRANTED; defendant's cross-motion for summary judgment is hereby DENIED; and the matter is hereby REMANDED to the Commissioner for payment of benefits. [docket # 9]

  IT IS SO ORDERED.


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