Kay McCawley v. Michael Astrue

MEMORANDUM *

The ALJ’s determination that McCawley could “stand/walk no more than 2 hours” and “sit about 6 hours” in an 8-hour workday was not supported by substantial evidence. Although Dr. Forney’s two medical source statements could have supported the ALJ’s determination, it is unclear whether the ALJ treated Dr. Forney’s assessments of McCawley’s sitting and standing abilities as separate medical opinions and relied on the higher estimates of each. This would be a permissible approach under SSR 96-5p, because the stand/walk and sit assessments could be considered “separate medical opinions regarding diverse physical ... functions.” SSR 96-5p. The ALJ, however, did not state that he was following this approach or point to any other evidence in the record supporting his conclusion. Cf. Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999). Because a claimant’s residual functional capacity (RFC) “may be the most critical finding contributing to the final ... decision about disability,” SSR 96-5p, we remand to the agency to clarify the basis for the ALJ’s RFC determination.

The remainder of McCawley’s arguments lack merit. The ALJ gave “specific and legitimate” reasons for…

concurring in part and dissenting in part:

I concur in the majority’s conclusion that the ALJ’s determination that McCaw-ley could “stand/walk no more than 2 hours” and “sit about 6 hours” in an 8-hour workday was not supported by substantial evidence, and that remand for clarification is warranted. I respectfully dissent, however, from the majority’s conclusion that the ALJ did not err in discounting certain portions of McCawley’s testimony regarding her pain.

An ALJ evaluating the credibility of a claimant’s testimony regarding subjective pain must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.2009). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to pi-oduce the pain or other symptoms alleged.’ ” Lingenfelter v. As true, 504 F.3d 1028, 1036 (9th Cir.2007) *691 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (en banc)).

There is no dispute that McCawley received an operation to correct a bad break in her right leg, and that this operation involved the insertion of a metal plate and fourteen screws. Nor is there any dispute…

FILED

NOT FOR PUBLICATION MAR 21 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KAY D. MCCAWLEY, No. 10-35056

Plaintiff - Appellant, D.C. No. 9:09-cv-00039-JCL

v.

MEMORANDUM *

MICHAEL J. ASTRUE,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Jeremiah C. Lynch, Magistrate Judge, Presiding

Argued and Submitted February 11, 2011 Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

The ALJ’s determination that McCawley could “stand/walk no more than

hours” and “sit about 6 hours” in an 8-hour workday was not supported by

substantial evidence. Although Dr. Forney’s two medical source statements could

have supported the ALJ’s determination, it is unclear whether the ALJ treated Dr.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Forney’s assessments of McCawley’s sitting and standing abilities as separate

medical opinions and relied on the higher estimates of each. This would be…