Page:Datastorm Technologies v. Excalibur Communications.pdf/8

 relying on Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir.1983). Blacknall does not support the Secretary’s position. In Blacknall, the Court rejected a finding of the ALJ that the plaintiff there was capable of doing light work, but the Court found instead that the plaintiff was capable of doing sedentary work, On the surface this might seem to support the Secretary’s contention that this Court can make a finding that plaintiff can do a full range of sedentary work, even though the ALJ never so found. However, as the 9th Circuit pointed out in Blacknall, the district court there was not making a new finding; rather, it was merely recognizing that: "… [U]nder 20 C.F.R. § 404.1567(b), a finding that a claimant has the residual functional capacity for light work includes a finding that he has the capacity for sedentary work. Incorporating the sedentary work capability determination within the finding of light work capability is not error unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time…. Thus, the district court was authorized to make the narrower, sedentary finding rather than the more inclusive finding of capacity for light work."

Blacknall, supra, 721 F.2d at 1181 (internal quotes omitted) (emphasis added).

The Secretary urges the Court to replace the ALJ’s finding with a broader finding, not a narrower finding. This, however, would require the Court to make a finding that the ALJ never made, implicitly or otherwise. This Court’s power extends only to reviewing the Secretary’s decision as it was made, not as the Secretary now wishes it was made. The Secretary had the authority, of course, through the Appeals Council of the Office of Hearings and Appeals, Social Security Administration, to broaden the decision of the ALJ. She elected not to do that, and this Court has no authority ta do it for her.

In short, the Court reads Blacknall as authority for the Court to modify the Secretary’s decision by rejecting unsupported broad findings and replacing them with alternative findings that are “lesser included” findings implicitly made by the Secretary. Neither 42 U.S.C. § 405(g) nor Blacknall provides authority for the Court to modify the Secretary’s decision by rejecting her narrow findings and replacing them with broader findings.


 * 4. Plaintiff Is Entitled to an Immediate Award of Benefits.

The ALJ found that plaintiff could not perform her past work. The ALJ also found that plaintiff could not perform any other work except sedentary work. His finding that plaintiff could perform two jobs, cashier II and ticket seller, which were at the light exertional level was thus plainly unsupported by the record and was inconsistent with his own findings. Thus, there is no evidence that plaintiff could perform any work in the economy, and she was entitled to a finding that she is disabled. There is nothing in the record to indicate that it is in any way incomplete. Accordingly, an immediate award of benefits, rather than remand, is required. Erickson v. Shalala, 9 F.3d 813 (9th Cir.1993).


 * 5. Order.

For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment is GRANTED, and Defendant’s Motion for Summary Judgment is DENIED. Judgment will be entered accordingly.