Barbara J. Hamilton v. Commissioner of Social Security Administration

This disposition is not appropriate for publication and is not precedent except as*
provided by 9th Cir. R. 36-3.
The Honorable James G. Carr, Senior District Judge for the U.S. District Court for**
the Northern District of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA J. HAMILTON,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
No. 11-15140
D.C. No. 1:09-cv-01427-SMS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding
Argued and Submitted November 30, 2011
San Francisco, California
Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**
Appellant Barbara J. Hamilton appeals the denial of Social Security disability
benefits. We reverse and remand. Because the parties are familiar with the facts and
the procedural history, we will not recount them here.
FILED
JAN 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Hamilton contends that the ALJ’s finding of fact that she must be able to “sit
and stand at will” mandated a finding of disabled given her age, education, work
experience, and residual functional capacity (RFC). A finding that a claimant must be
able to sit and stand at will does not necessarily leave only sedentary and unskilled
positions (and therefore does not automatically mandate a finding of disabled in all
cases) under the Medical-Vocational Guidelines.
Hamilton contends, however, that the ALJ’s hypothetical to the vocational
expert (VE) did not accurately incorporate the at will sit/stand option. To be sure, the
hypothetical could be construed as accurately stating Hamilton’s RFC. But the light
positions the VE pointed out to the ALJ cannot accommodate Hamilton’s at will
sit/stand limitation, according to the VE’s own testimony.
The ALJ should have resolved the discrepancy between the hypothetical he
posed and the VE’s response before he relied on the VE testimony to conclude there
are sufficient jobs Appellant can perform and thereon denied benefits.
Substantial evidence does not support a finding of disability where the VE’s
testimony either is contradictory or responds to an inaccurate hypothetical. Taylor v.
Comm’r of Social Sec. Admin., 659 F.3d 1228, 1235 (9th Cir. 2011).

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An immediate award of benefits is not necessary here, where the discrepancy
can be resolved by remanding to the Social Security Administration. Marcia v.
Sullivan, 900 F.2d 172, 176 (9th Cir. 1990).
REVERSED AND REMANDED.

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