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Aguiniga v. Astrue


September 17, 2008



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"), for the period from July 28, 2000, through September 17, 2002. For the reasons that follow, plaintiff's motion for summary judgment is granted, the Commissioner's motion for summary judgment is denied, and the Clerk is directed to enter judgment for plaintiff.


Plaintiff, born October 16, 1955, initially applied for disability benefits on February 9, 2001, alleging disability since July 28, 2000, due to "carpal tunnel on both hands, tendinitis on right hand, fingers, hands, wrists and forearm pain." Administrative Record ("AR") 54, 92-111.

The application was denied initially and upon reconsideration. AR 55, 65-67. On September 16, 2002, following a hearing before Administrative Law Judge ("ALJ") Antonio AcevedoTorres, plaintiff was found not disabled.*fn1 AR 41-52. Before that decision issued, plaintiff reapplied for benefits on November 4, 2002. AR 57-60. That application was considered, and the Agency determined that plaintiff was disabled as of September 17, 2002, based on a primary diagnosis of systemic lupus erythematosus ("SLE").*fn2 AR 54. Thus, the issue as to the instant claim is whether plaintiff was disabled for the period from July 28, 2000, through September 17, 2002.

Plaintiff requested that the Appeals Council review the ALJ's September 16, 2002, decision. AR 38-40; 82-83. On September 3, 2004, the Appeals Council vacated that decision and remanded the case back to the ALJ for further proceedings. AR 84-87. Specifically, the Appeals Council found that the ALJ erred in assessing plaintiff's credibility relative to her subjective complaints, evaluating the opinions of her treating and examining physicians, and assessing the demands of her past relevant work with respect to her residual functional capacity. Id. The Appeals Council instructed the ALJ to reconsider the issue of whether plaintiff was disabled prior to September 17, 2002. AR 87.

On April 6, 2005, a supplemental hearing was held before ALJ Acevedo-Torres. AR 401-44. In a decision dated May 20, 2005, the ALJ determined that plaintiff was not disabled from July 28, 2000, through September 17, 2002. AR 12-25. Specifically, the ALJ made the following findings:

1. The claimant met the disability insured status requirements of the Act on July 28, 2000, the date the claimant stated she became unable to work, and continues to meet them through December 30, 2006.

2. The claimant has not engaged in substantial gainful activity since her alleged onset date.

3. The evidence supports a finding that during the pertinent period, July 28, 2000 to September 17, 2002, the claimant had a history of De Quervain's tendonitis of the dominant right wrist; left elbow lateral epicondylitis; slight carpal tunnel symptoms of the right hand; carpal tunnel symptoms on the left; lupus, unclassified systemic rheumatic disease characterized by positive ANA, elevated sedimentation rate, elevated immunoglobulins, joint pain, and fibromyalgia. However, she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

Stedman's Medical Dictionary,149 (27th ed. 2000).

4. Subjective complaints are considered credible only to the extent that they are supported by the evidence of record, as summarized in the text of this decision.

5. The claimant has the retained residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk (with normal breaks) for a total of six hours in an eight-hour workday and sit a total of six hours in an eight-hour workday. She is precluded from climbing ladders, ropes and scaffolds. She has manipulative limitations of no more than occasional use of her hands for manipulative activities. (20 CFR 404.1520(e) .

6. The claimant is unable to perform her past relevant work as a Clerk for the State of California, and an in-home service worker (20 CFR 404.1520(e) [sic].

7. The claimant is 49 years of age, which is defined as a younger individual.

8. The claimant has a high school education (20 CFR 404.1563, 404.1564).

9. In view of claimant's age and residual functional capacity, the issue of transferability of work skills is not material.

10. If the claimant's exertional capacity were for a full range of light work activities, and there were no non-exertional impairments, in consideration of such a capacity and her age, education and work experience, Guideline Rule 202.21 of the Medical-Vocational Guidelines of 20 CFR Part 404, Subpart P, Appendix 2, would direct a conclusion that the claimant is not disabled.

11. Considering the claimant's age, educational background and residual functional capacity she is able to make a successful vocational adjustment to work which exists in significant numbers in the national economy. Pursuant to the testimony of the vocational expert, these jobs include:

(1) counter clerk, Dictionary of Occupational Titles (DOT) code 249.366-010, light exertion, SVP 2, unskilled work;

(2) scaling machine operator DOT 521.685-386, light exertion, SVP 2;

(3) bakery worker, DOT 524.687-022, light exertion, SVP 2;

(4) election clerk, DOT 205.367-030, sedentary exertion, SVP 2;

(5) children's attendant DOT 349.677-018, light, SVP 2; and

(6) call-out operator, DOT 237.367-014, sedentary, SVP 2.

12. The claimant was not under a disability, as defined in the Social Security Act, for the period of July 28, 2000 to September 17, 2002. (20 CFR 404.1520(f) [sic]. AR 21-22.

On December 16, 2006, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 7-10.


In her motion for summary judgment, plaintiff essentially alleges four errors in the Commissioner's decision. First, she alleges that the ALJ failed to consider a combination of all plaintiff's impairments at step two of the sequential evaluation. Second, she alleges that the ALJ's residual functional capacity ("RFC") assessment is flawed in two ways: (1) its failure to reflect the opinion of plaintiff's treating physician, Dr. Kenneth Wiesner, M.D.; and (2) its failure to account for plaintiff's improperly discredited subjective complaints. Finally, plaintiff alleges that the ALJ erred at step five of the sequential evaluation by failing to prove that other work exists in the national economy that is within plaintiff's RFC.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).


A. Step Two of the Sequential Evaluation

"The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater,80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen, 482 U.S. at 153.

At step two of the sequential evaluation, the ALJ determines which of claimant's alleged impairments are "severe" within the meaning of 20 C.F.R. § 404.1520(c). A severe impairment significantly limits a person's physical or mental ability to do basic work activities. Id. "An impairment is not severe if it is merely 'a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.'" Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling ("SSR") 96-3p (1996)).

If a severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis. 20 C.F.R. § 404.1523. The ALJ "must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone [i]s sufficiently severe." Smolen, 80 F.3d at 1290; 20 C.F.R. § 404.1523.

Here, the ALJ did not set forth an explicit finding identifying which of plaintiff's alleged impairments were "severe" at step two. However, he specifically noted that it was "necessary to establish whether the claimant has a 'severe' impairment or combination of impairments," and that an "impairment is severe within the meaning of the regulations if it imposes significant restrictions in the ability to perform basic work activities." AR 16. He then found that the: evidence supports a finding that during the pertinent period, the claimant had a history of De Quervain's tendonitis of the dominant right wrist; left elbow lateral epicondylitis; slight carpal tunnel symptoms of the right hand; carpal tunnel symptoms on the left; lupus, unclassified systemic rheumatic disease characterized by positive ANA, elevated sedimentation rate, elevated immunoglobulins, joint pain, and fibromyalgia; impairments which can cause significant vocationally relevant limitations.

AR 16 (emphasis added).

Although the ALJ did not explicitly identify these as severe impairments at step two, that finding is implicit based from the context of the ALJ's discussion of them. Not only did the ALJ predicate this finding with a discussion of the requirements of step two, he concluded by stating that these impairments cause "significant vocationally relevant limitations," i.e., significant limitations on plaintiff's ability to do basic work activities. See 20 C.F.R. § 404.1520(c). Whether an impairment significantly limits a person's ability to do basic work activities is the relevant finding for purposes of step two, and that was the finding made by the ALJ here.

Further, that plaintiff prevailed at step two is implied by the ALJ's findings and conclusions with respect to the remaining steps of the sequential evaluation. Although plaintiff acknowledges that she prevailed at step two, she argues that the ALJ should have found her fatigue -- as well as all her other symptoms -- "severe" at step two. Plaintiff asserts that "[w]here the effects of an impairment are not included in the severity analysis, there is no assurance that they will have any role whatsoever in the determination of plaintiff's disability. . . ." Pl.'s Mem. in Supp. of Mot. for Summ. J. ("Pl.'s Br."), 13:17-19.

This argument ignores the function of step two as a gatekeeping mechanism to dispose of groundless claims. Once a plaintiff prevails at step two, regardless of which impairment is found to be severe, the Commissioner proceeds with the sequential evaluation, considering at each step all other alleged impairments and symptoms that may impact her ability to work. See 42 U.S.C. § 423(d)(2)(B). Again, plaintiff prevailed at step two. Although the ALJ may have improperly discounted or mischaracterized evidence of plaintiff's functional limitations throughout the remaining steps of the sequential evaluation, as addressed below, this does not necessarily constitute error at step two. Rather, the question is whether the ALJ properly considered the functional limitations of all medically determinable impairments at the remaining steps. See Smolen, 80 F.3d at 1290 (if one severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis) (citing 20 C.F.R. § 404.1523); see Burch v. Barnhart, 400 F.3d 676, 682-82 (9th Cir. 2005) (ALJ's failure to find claimant's obesity severe at step two was harmless error where it was considered in determining claimant's RFC).

B. Steps Four and Five and the Evaluation of Medical Opinions and Testimony

Steps four and five of the analysis require a determination of the plaintiff's residual capacity to perform work functions of her past work (step four) and, if unable to do so, other work (step five). Plaintiff argues that the ALJ failed to credit the opinion of her treating physician and her testimony regarding her subjective complaints, and thereby erred in assessing her residual functional capacity. As discussed, the court agrees.

1. Medical Opinions

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester, 81 F.3d at 830. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen, 80 F.3d at 1285.

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons, that are supported by substantial evidence. Id., at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not 'substantial evidence.'" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

Here, the record reveals a host of medical opinions, each with slightly varying assessments of plaintiff's functional limitations and each in marked contrast to the assessment of the state agency physician. However, the ALJ's ultimate determination of plaintiff's RFC exactly reflects the October 1, 2001, opinion of non-examining, state agency physician Dr. Antoine Dipsia, M.D. AR 19, 276-83. Specifically, the ALJ found plaintiff capable of lifting and carrying twenty pounds occasionally and ten pounds frequently. AR 19. He found that she could "stand and/or walk (with normal breaks) for a total of six hours in an eight-hour workday," could sit for six hours, but was precluded from climbing ladders, ropes and scaffolds. Id. He further found that she "has manipulative limitations of no more than occasional use of her hands for manipulative activities." AR 19, 276-83.

That opinion is the least restrictive with respect to plaintiff's functional limitations, and differs in important ways from those offered by plaintiff's treating rheumatologist, Dr. Kenneth B. Wiesner, M.D., and examining physicians Dr. John L. Branscum, M.D. and Dr. Carl W. Wolf, M.D.

Although Dr. Wolf's opinion was based on an examination that occurred six months beyond the relevant time period, it nonetheless acknowledges plaintiff's upper extremity limitations. AR 360-64. Dr. Wolf examined plaintiff on March 7, 2003, and observed diminished motor and grip strength in plaintiff's upper extremities, and opined that she could only lift five pounds occasionally. AR 363.

This is consistent with Dr. Branscum's opinion. AR 335-44. Dr. Branscum examined plaintiff on August 27, 2001, and found that plaintiff had positive Phalen's, Tinel's and Finkelstein's signs,*fn3 with a substantial loss of strength in both her right and left wrists. He further found "exquisite tenderness" around plaintiff's left elbow, and opined that plaintiff had "lost 75% of grip strength bilaterally." AR 343. He opined that plaintiff's impairments and resulting loss of strength limited her to simple manipulation, and that she had lost "75% of her preinjury capacity for pushing, pulling, grasping, gripping, pinching, holding, torquing and performing similar activities and activities requiring finger dexterity." Id.

These opined limitations are markedly more restrictive than those reflected in Dr. Dipsia's opinion. In particular, a seventy-five percent reduction in plaintiff's ability to pull, push, grip, grasp, and perform similar activities is not accounted for by a limitation of "occasional use of both hands for" reaching, handling, and fingering.*fn4 AR 279.

Significantly, Dr. Wiesner unequivocally endorsed Dr. Branscum's conclusions in an opinion dated January 30, 2002. AR 291. He confirmed that plaintiff had positive Phalen's, Tinel's and Finkelstein's signs, along with "subcutaneous atrophy and vitiligo over the radial aspect of the wrist, where she has been injected."*fn5 Id. He further noted acute tenderness in plaintiff's lateral epicondyle, and opined that "use of her upper extremities is very limited by virtue of her loss of grip strength" in both hands. Id.

Like Dr. Branscum, Dr. Wiesner opined limitations not just with respect to plaintiff's manipulative functions, but for all activities involving her upper extremities. Although Dr. Wiesner never completed a physical RFC assessment form, he repeatedly opined that plaintiff was disabled and unable to maintain gainful employment due to her upper extremity impairments, lupus and fibromyalgia. See, e.g.,AR 285, 291, 353.

While "the treating physician's opinion on the ultimate issue of disability is not necessarily conclusive," the ALJ still must give "clear and convincing" reasons for rejecting it. Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989).

Here, the ALJ gave "little evidentiary weight to the extreme findings of total disability assessed by the claimant's treating physician, Dr. Wiesner." AR 19. The ALJ noted that the "ultimate decision of disab[ility] is reserved to the Commissioner. . . and [that he was] not bound to accept a treating physician's conclusion as to disability or functional capacity, particularly when, as here, the opinion is not supported by detailed, clinical diagnostic evidence." Id. The ALJ observed that "Dr. Wiesner did not cite objective findings that relate to functional limitations and restrictions assessed; and his findings appear to be based solely upon the claimant's recitation of her subjective complaints." AR 20.

To the contrary, as noted above, Dr. Wiesner pointed to objective findings to support his endorsement of Dr. Branscum's opinion -- specifically, the positive Phalen's, Tinel's and Finkelstein's signs. AR 291, 289, 292, 294, 297, 357. Further, during the relevant period Dr. Wiesner diagnosed plaintiff with "left elbow epicondylitis, work-related, secondary to repetitive trauma," De Quervain's tenosynovitis involving the right wrist, "secondary form of fibromyalgia," "unclassified systemic rheumatic disease characterized by a positive ANA, elevated sed rate, joint pain, sicca, and elevated immunoglobulins." AR 244, 251.

Notably, the very diagnosis of plaintiff's rheumatic disease (later identified as SLE) is supported by objective, clinical findings, namely, an elevated sedimentation rate, positive anti-nuclear antibodies ("ANA"), sicca, and elevated immunoglobulins. AR 285. Each of these are objective, clinical signs pointing to the existence of an autoimmune disorder.*fn6

Further, the record shows that the other diagnoses were based on objective findings of tenderness over the lateral epicondyle (AR 249, 250-51), extreme tenderness over the medial epicondyle (AR 246), trigger point tenderness at chest wall, elbows, knees, ankles, and shins, consistent with fibromyalgia (AR 244, 246, 252, 253, 297), dry eyes and mouth (AR 252), and positive Tinel's and Finkelstein's signs (AR 289, 292, 294, 297, 357).

On August 2, 2002, Dr. Wiesner noted the "disabling features" of plaintiff's many impairments, including her SLE, and opined that each condition presents its "own level of disability." AR 285. He opined that plaintiff would not "be able to have gainful employment, at least in the next few years, unless her elbow and wrist get better miraculously." Id. Again on August 16, 2002, Dr. Wiesner noted the objective signs of plaintiff's SLE, and opined that this condition, together with her epicondylitis, tenosynovitis, and fibromyalgia, made her "disabled from gainful employment." Id. He further warned against repetitive use of her elbow and right thumb/wrist. Id.

While Dr. Wiesner's opinion is somewhat conclusory, it is not, as the ALJ concluded "based solely upon the claimant's recitation of her subjective complaints." AR 19-20. Further, while the ALJ noted Dr. Wiesner's comments in May 2001 that plaintiff needed a different type of employment, he ignored Dr. Wiesner's later opinions, which consistently indicated that he believed plaintiff was precluded from gainful employment altogether. AR 289, 286, 353, 355.

Moreover, the record belies the ALJ's conclusion that Dr. Wiesner's findings were "not consistent with the findings in the other evidence of record." AR 20. Specifically, Dr. Wiesner's findings are largely consistent with those of Dr. Branscum, who, after examining plaintiff concluded that she had lost "75% of her preinjury capacity for pushing, pulling, grasping, gripping, pinching, holding, torquing and performing similar activities and activities requiring finger dexterity." AR 343. Both doctors assessed significant limitations caused by plaintiff's impairments, and while unlike Dr. Wiesner, Dr. Branscum did not indicate a complete preclusion from work, his findings do indicate a substantial reduction in plaintiff's ability to perform work activities using her upper extremities. Despite this, the ALJ glossed over Dr. Branscum's conclusions (even though they were shared by plaintiff's treating rheumatologist), and mischaracterized them as "essentially consistent" with the ALJ's conclusion that plaintiff was capable of "performing a significant range of light [work]." AR 20, 22.

"Light work" requires "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." SSR 83-10. "A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work. . . ." Id. "'Frequent' means occurring from one-third to two-thirds of the time." Id. "To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b) (emphasis added).

Dr. Branscum's opined limitations essentially preclude plaintiff from light work, and only the non-examining state agency physician found plaintiff capable of performing a significant range of light work. See Lester, 81 F.3d at 831 (the opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional). In light of the contradictions between the state agency physician's opinion and those of Drs. Wiesner and Branscum, the ALJ was required to at least give specific and legitimate reasons for rejecting or ignoring them. The mischaracterization of the record as set forth above is neither specific and legitimate nor clear and convincing. Accordingly, the court finds error in the ALJ's treatment of the medical opinions in the record, and by extension, with his assessment of plaintiff's RFC.

2. Credibility Determination

The ALJ's credibility determination was similarly flawed. The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons. See, e.g., Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by "a specific, cogent reason for the disbelief").

In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may consider the nature of the symptoms alleged, including aggravating factors, medication, treatment and functional restrictions. Id.,at 345-47. The ALJ also may consider:

(1) the applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the applicant's daily activities. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); Smolen, 80 F.3d at 1284.

"Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

Here, the ALJ found that plaintiff's "allegations as to multiple symptoms and limitations, [were] exaggerated and thus less than fully credible, and . . . [were not] supported by the weight of the medical evidence." AR 21. The ALJ wrote that "[p]rior to September 17, 2002, there is . . . a lack of medical documentation of an impairment which would cause extreme pain or pain which would significantly compromise the claimant's ability to perform work-related activities." AR 21. This statement completely ignores the medical evidence discussed above, which indicates the presence of several impairments -- epicondylitis, De Quervain's tenosynovitis involving the right wrist, SLE and fibromyalgia -- all of which caused plaintiff pain and/or significantly impaired her ability to grasp, grip, pull push, and hold objects. See, e.g., AR 332-33, 343, 244, 246, 249, 252, 253, 297, 289, 292, 294, 297, 357.

Further, the ALJ's observation that "the record does not document ongoing significant objective evidence of muscle atrophy, deconditioning or muscle weakness" is inapposite. AR 21. The record contains relevant evidence indicating substantial losses in strength and in plaintiff's ability to hold, push, pull, grasp and grip objects. See AR 343. The ALJ cites no authority demonstrating that plaintiff's impairments should typically produce "muscle atrophy" or "deconditioning" rather than the limitations described above.

The ALJ also discredits plaintiff because "there is no indication that the claimant's treating source has ever recommended any treatment other than physical therapy, anti-inflammatory, pain medications and splinting of her wrists. . . . Surgery has not been suggested, and the claimant has not been referred to a pain clinic or a specialist." AR 21.

To the contrary, Dr. Wiesner referred plaintiff to specialist Dr. James A. Lilla, M.D., at Hand Surgery Associates in Sacramento. The record shows that she received an injection from Dr. Lilla in 1999, but that the relief did not last after she returned to work. AR 253. Dr. Wiesner noted the injection and remarked that surgery may be indicated given the chronic nature of plaintiff's wrist condition. Id. The record shows that on May 24, 2001, Dr. Lilla discussed surgery with plaintiff, and advised her that although it was feasible on the "left first extensor compartment," there was no guarantee that it would resolve her problems, especially in light of her underlying connective tissue disorder (i.e., SLE). AR 195. Thus, contrary to the ALJ's characterization of the record, plaintiff was referred to a specialist, and surgery was suggested, although it was ultimately decided against in light of likely complications and worsening related to her SLE. These mischaracterizations of the record do not constitute clear and convincing reasons for discrediting plaintiff. Morgan, 169 F.3d at 599.

"Where the ALJ improperly rejects the claimant's testimony regarding [her] limitations, and the claimant would be disabled if [her] testimony were credited, we will not remand solely to allow the ALJ to make specific findings regarding that testimony." Lester, 81 F.3d at 834 (quoting Varney v. Sec'y of Health and Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988) (internal quotations omitted). "Rather, that testimony is credited as a matter of law." Id. Similarly, "[w]here the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion as a matter of law." Id. (quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989)) (internal quotations omitted); see also Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990) (remanding for payment of benefits where Secretary did not provide adequate reasons for disregarding examining physician's opinion).

Here, plaintiff testified that as a result of her impairments, she could not sit without having to shift from side to side, and that she felt constantly tired and in pain. AR 411, 413. She testified that she had significant restrictions in her upper extremities, and that she had difficulty in, for example, lifting clothes out of the dryer. AR 426. She testified that she could only lift small objects, and could no longer, for example, pick up or carry a half gallon of milk. AR 410.

This testimony is largely consistent with the opinions of Drs. Branscum and Wiesner -- an examining physician and treating physician, respectively -- which were improperly rejected or mischaracterized by the ALJ. By crediting those opinions and plaintiff's testimony as a matter of law, it is clear that plaintiff was unable to engage in substantial gainful activity during the relevant period. Accordingly, the court will not address the other alleged errors at step five, and will not remand for further findings because "no useful purpose would be served by further administrative proceedings." Varney, 859 F.2d at 1399; see also Pitzer, 908 F.2d at 506 (the decision whether to remand a case for additional evidence or simply to award benefits is within the discretion of the court).


For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for immediate payment of benefits.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment is granted;

2. The Commissioner's cross motion for summary judgment is denied; and,

3. This action is remanded to the Commissioner for immediate payment of benefits. The Clerk is directed to enter judgment for plaintiff.

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