Oralia De Monge Sepulveda v. Jo Anne B Barnhart, No. 2:2006cv08164 - Document 21 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case REMANDED for further proceedings consistent with this Memorandum Opinion and Order. LET JUDGMENT BE ENTERED ACCORDINGLY. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ORALIA DE MONGE SEPULVEDA, ) ) Plaintiff, ) ) v. ) ) ) MICHAEL J. ASTRUE,1 Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. CV 06-08164-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on January 10, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for disability insurance benefits ( DIB ). 21 January 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). The parties filed a Joint Stipulation on October 30, 2007, in 24 which: plaintiff seeks an order reversing the Commissioner s decision 25 and directing the immediate payment of benefits or, in the alternative, 25, 2007, the parties consented to proceed before On the 26 27 28 1 Michael J. Astrue became the Commissioner of the Social Security Administration on February 12, 2007, and is substituted in place of former Commissioner Joanne B. Barnhart as the Defendant in this action. (See Fed. R. Civ. P. 25(d)(1); Section 205(g) of the Social Security Act, last sentence, 42 U.S.C. § 405(g).) 1 remanding the matter for further proceedings; and defendant seeks an 2 order affirming the Commissioner s decision. 3 parties Joint Stipulation under submission without oral argument. The Court has taken the 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS AND DECISION 6 Plaintiff filed her application for DIB on December 4, 2002, 7 8 alleging an inability to work since September 21, 2001, due to 9 musculoskeletal and mental impairments.2 (A.R. 18, 46-48.) Plaintiff s 10 claim was denied initially and upon reconsideration, and on May 25, 11 2005, plaintiff, who was represented by counsel, testified at a hearing 12 before Administrative Law Judge Lawrence D. Wheeler ( ALJ ). (A.R. 670- 13 90.) 14 27), and the Appeals Council subsequently denied plaintiff s request for 15 review of that decision (A.R. 7-10). On October 25, 2005, the ALJ denied plaintiff s claim (A.R. 18- 16 17 In his written decision, the ALJ partially accepted the opinions of 18 plaintiff s treating physicians and found that plaintiff has the 19 residual functional capacity [ RFC ] to perform the physical exertion 20 and non-exertional requirements of work except for more than sedentary 21 work, more than occasional climbing, stooping, balancing, kneeling, 22 crouching or crawling, she must avoid working on uneven terrain, and she 23 is limited to simple tasks and minimal contact with others. (A.R. 27.) 24 Additionally, the ALJ found that plaintiff is not restricted in neck 25 2 26 27 28 Specifically, the ALJ found that plaintiff has severe lower back, bilateral knee, and left shoulder conditions, obesity, depressive disorder with anxiety and psychological factors affecting mental conditions, but 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. (Administrative Record ( A.R. ) 26, 27.) 2 1 movements (A.R. 21), and the ALJ did not find a need to restrict above 2 shoulder level work (A.R. 23). 3 partial acceptance of plaintiff s treating psychiatrist s opinions, that 4 plaintiff has a slight to less than moderate mental impairment based 5 limitations in daily activities, moderate limitations in maintaining 6 social 7 concentration, persistence and pace and no episodes of decompensation. 8 (A.R. 25.) functioning, slight The ALJ further found, based upon his to less than moderate limitations in 9 10 The ALJ determined that plaintiff is unable to perform her past 11 relevant work as a pre-school teacher, but based upon the vocational 12 expert s testimony and plaintiff s RFC, she is able to perform work as 13 an addresser and lens inserter. 14 concluded that plaintiff was not under a disability at any time through 15 the date of his decision. (A.R. 27.) Therefore, the ALJ (Id.) 16 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's 20 decision to determine whether it is free from legal error and supported 21 by substantial evidence in the record as a whole. 22 F.3d 625, 630 (9th Cir. 2007). 23 evidence as a reasonable mind might accept as adequate to support a 24 conclusion. 25 a mere scintilla but not necessarily a preponderance. 26 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)(citation omitted). 27 inferences from the record can constitute substantial evidence, only 28 those reasonably drawn from the record will suffice. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 3 The evidence must be more than Connett v. While Widmark v. 1 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 2 3 Although this Court cannot substitute its discretion for that of 4 the Commissioner, the Court nonetheless must review the record as a 5 whole, weighing both the evidence that supports and the evidence that 6 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y. of 7 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 8 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 9 responsible for determining credibility, resolving conflicts in medical 10 testimony, and for resolving ambiguities. 11 The ALJ is Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 12 13 The Court will uphold the Commissioner s decision when the evidence 14 is susceptible to more than one rational interpretation. 15 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 16 review only the reasons stated by the ALJ in his decision and may not 17 affirm the ALJ on a ground upon which he did not rely. 18 at 630; see also Connett, 340 F.3d at 874. 19 the Commissioner s decision if it is based on harmless error, which 20 exists only when it is clear from the record that an ALJ's error was 21 inconsequential to the ultimate nondisability determination. Robbins 22 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 23 Comm r., 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 24 F.3d at 679. 25 26 /// 27 28 /// 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse DISCUSSION 1 2 3 Plaintiff alleges two issues: (1) whether the ALJ erred in his 4 assessment of plaintiff s physical RFC; and (2) whether the ALJ erred in 5 his assessment of plaintiff s mental RFC. 6 7 I. The ALJ Failed To Provide Specific And Legitimate Reasons Supported 8 By Substantial Evidence For Rejecting Portions Of Plaintiff s 9 Treating Physicians Opinions Regarding Plaintiff s Physical RFC. 10 11 A treating physician s conclusions must be given substantial 12 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 13 where the treating physician s opinions are contradicted, if the ALJ 14 wishes to disregard the opinion[s] of the treating physician he . . . 15 must make findings setting forth specific, legitimate reasons for doing 16 so that are based on substantial evidence in the record. 17 Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Even Winans v. 18 19 In the present case, the ALJ clearly set forth specific reasons for 20 rejecting portions 21 However, 22 substantial 23 specific 24 constitutes error. these and of reasons evidence. legitimate plaintiff s were treating neither Accordingly, reasons, legitimate the based physicians ALJ s upon nor failure opinions. based to substantial upon provide evidence, 25 26 In his decision, the ALJ rejected portions of the November 2003 27 assessment of plaintiff s treating orthopedist, Steven Nagelberg, M.D. 28 Specifically, the ALJ rejected Dr. Nagelberg s opinion that plaintiff 5 1 has manipulative (or related environmental) restrictions . . . [and] 2 that [plaintiff] is restricted to less than 2 hours of 8 hours standing 3 and/or walking (albeit he indicates that that [sic] she does not require 4 an assistive device) or that she must have a job that permits shifting 5 of positions at will from sitting, standing or walking, or may require 6 unscheduled breaks. (A.R. 22.) In rejecting these limitations, the 7 ALJ cites the following reasons: (1) plaintiff s ability to engage in 8 daily activities suggests that Dr. Nagelberg s assessment of plaintiff s 9 functional capacity is unduly limited; (2) Dr. Nagelberg had not 10 examined plaintiff since May 2003, which was prior to plaintiff s right 11 knee surgery; and (3) there is opposing opinion evidence from one-time 12 consultative examiner, Raymond Lee, M.D. (A.R. 21-22.) 13 14 The ALJ improperly relies on plaintiff s ability to engage in 15 limited daily activities to justify his rejection of Dr. Nagelberg s 16 opinion. 17 penalized for attempting to lead normal lives in the face of their 18 limitations. 19 The ALJ states that plaintiff s daily activities reflect that she does 20 household chores, including cooking and preparing meals, shopping and 21 other activities during which she is on her feet. 22 it is clear that many home activities are not easily transferrable to 23 . . . the more grueling environment of the workplace, where it might be 24 impossible to periodically rest or take medication. Fair v. Bowen, 885 25 F.2d 597, 603 (9th Cir. 1989). 26 performance of simple self-care duties, to support his rejection of Dr. 27 Nagelberg s opinion, constitutes error. It is well-settled that disability claimants should not be Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). (A.R. 22.) However, The ALJ s reliance on plaintiff s 28 6 1 Additionally, while it is true that Dr. Nagelberg s opinions are 2 based on an examination of plaintiff prior to her right knee surgery, so 3 are Dr. Lee s opinions.3 4 opinion is clearly entitled to less weight than the opinion of Dr. 5 Nagelberg, who regularly examined and treated plaintiff over a year-long 6 period. 7 1989)(treating physician opinions are entitled to great deference). 8 neither Dr. Nagelberg nor Dr. Lee examined plaintiff after her right 9 knee See surgery, As a one-time consultative examiner, Dr. Lee s Magallanes the ALJ s v. Bowen, reliance 881 on F.2d Dr. 747, Lee s 751 (9th opposing Cir. As opinion 10 evidence to support his rejection of portions of the opinions of Dr. 11 Nagelberg and Dr. Hay, as discussed below, constitutes error. 12 13 The ALJ also improperly rejected portions of the opinion of 14 plaintiff s treating orthopedic surgeon, Phillip Hay, M.D., as set forth 15 in his November 2003 and May 2004 assessments. 16 To diminish the weight accorded to Dr. Hay s opinions, defendant 17 contends that Dr. Hay was not plaintiff s treating physician, but an 18 examining physician for the purpose of plaintiff s worker s compensation 19 case. In fact, Dr. Hay consistently and routinely treated plaintiff for 20 her work-related injuries from May 22, 2003, through May 1, 2004. (A.R. 21 618-38.) For all intents and purposes, Dr. Hay acted as plaintiff s 22 treating physician, 23 accordingly. and his opinions (A.R. 614-17, 618-33.) should have been weighted 24 25 3 26 27 28 Prior to completing his November 21, 3003 Physical Residual Functional Capacity Questionnaire, Dr. Nagelberg had last examined plaintiff on May 7, 2003. (A.R. 505.) Dr. Lee performed his internal medicine examination on plaintiff on March 14, 2003. (A.R. 264-68.) Plaintiff underwent right knee surgery on October 21, 2003. (A.R. 50304.) 7 1 Critically, Dr. Hay, unlike both Drs. Nagelberg and Lee, examined 2 plaintiff following her right knee surgery, opined that her prognosis 3 was guarded, and diagnosed her with internal derangement of right 4 knee, patellar femoral syndrome of right knee, chondromalacia patella, 5 and synovitis of right knee. 6 that, as of May 2004, plaintiff s knee and lower back disabilities 7 precluded: prolonged walking, prolonged standing, repetitive bending of 8 knees, kneeling, squatting, heavy lifting, prolonged weight bearing, 9 climbing, walking on uneven ground, crouching, crawling, pivoting, or (A.R. 614, 629.) Dr. Hay further opined 10 other activities involving comparable physical effort. 11 these limitations, the ALJ adopted as part of his RFC conclusion only 12 avoidance of working on uneven terrains. (A.R. 631.) Of (A.R. 19.) 13 14 It appears that, in seeking to diminish the significance of 15 plaintiff s right knee limitations, the ALJ may have overstated the 16 record regarding the extent to which plaintiff respond[ed] positively 17 . . . to surgery on her right knee. 18 testified at the hearing that her right knee improved after the 19 surgery, plaintiff s testimony is somewhat muddied on this issue, and it 20 is clear from both her testimony and Dr. Hay s records that significant 21 problems with her right knee persisted. 22 assessment of plaintiff s right knee condition post-surgery, Dr. Hay 23 referred to two progress reports, dated November 11, 2003, and January 24 5, 2004, that were authored by the orthopedic surgeon who performed 25 plaintiff s right knee surgery, but which are not included in the 26 present record. 27 reports may shed light on the extent to which this surgery alleviated 28 her right knee problems, the ALJ should have attempted to procure them, (A.R. 623.) (A.R. 20.) Although plaintiff (A.R. 679-80.) In his As it is likely that these post-operative 8 1 and his failure to do so constitutes error. 2 3 In addition, the ALJ improperly rejected Dr. Hay s opinion that 4 plaintiff should be restricted from engaging in prolonged forward head 5 position and above shoulder work. 6 reasons for rejecting Dr. Hay s opinion regarding plaintiff s upper 7 extremity limitations are that: 8 that of Dr. Nagelberg ; and (2) plaintiff s denial of upper extremity 9 limitations to Dr. Lee. (A.R. 22-23.) The ALJ s primary (1) it is somewhat inconsistent with (Id.) 10 11 The ALJ s assertion, that Dr. Hay s opinion regarding limitations 12 on plaintiff s use of her upper extremities is inconsistent with that of 13 Dr. Nagelberg, is belied by the record. 14 2003, 15 injuries sustained to her neck and shoulders. 16 did Dr. Nagelberg consistently report that plaintiff suffered from neck 17 and shoulder pain, but also the objective physical examination findings 18 clearly revealed limitations in plaintiff s neck and shoulders. 19 319-53, 505-62.) 20 of tenderness and positive impingement sign on the left shoulder, 21 tenderness of the lumbar and cervical spine, positive Tinel s signs4 at 22 the left elbow, positive Tinel s sign and positive Phalen s test5 for Dr. Nagelberg regularly treated From May 2002, through May plaintiff for work-related (A.R. 319-53.) Not only (A.R. The ALJ ignored Dr. Nagelberg s examination findings 23 24 25 4 Tinel s sign is a cutaneous tingling sensation produced by pressing on or tapping the nerve trunk that has been damaged or is regenerating following trauma. See TABER S CYCLOPEDIC MEDICAL DICTIONARY, p. 2192 (20th ed. 2005). 26 5 27 28 Phalen s test is a maneuver used in the physical diagnosis of carpal tunnel symptoms. The test is positive when wrist flexion produces numbness in the distribution of the median nerve. See TABER S CYCLOPEDIC MEDICAL DICTIONARY, p. 1650 (20th ed. 2005). 9 1 carpal tunnel syndrom on the left hand, and decreased sensation to 2 pinprick in the small finger and thumb of plaintiff s left hand. 3 319-20, 325, 330, 510, 545.) 4 Dr. Hay s physical examination of plaintiff revealed cervical lordosis, 5 scoliosis, spasms, decreased range of motion, decreased tendon reflexes, 6 and diminished sensation to pinprick, left more than right. 7 25.) 8 between the opinions of Drs. Nagelberg and Hay, to justify the ALJ s 9 rejection of Dr. Hay s opinion regarding plaintiff s upper extremity 10 limitations, is not based upon substantial evidence and constitutes 11 error. (A.R. Consistent with Dr. Nagelberg s findings, (A.R. 624- Accordingly, the ALJ s reliance on any purported inconsistencies 12 13 Additionally, in support of his rejection of Dr. Hay s opinion that 14 plaintiff could not perform prolonged forward head position and above 15 shoulder work, the ALJ impermissibly relies on plaintiff s purported 16 denial of such symptoms to Dr. Lee. 17 plaintiff s documented chief complaints were low back pain and right 18 knee pain does not negate plaintiff s consistent complaints of neck and 19 shoulder pain to her treating physicians, and it certainly does not mean 20 that plaintiff affirmatively denied any upper extremity pain to Dr. Lee. 21 (A.R. 264-68.) 22 specifically 23 complaints. 24 symptoms, such as chest pain or shortness of breath, nausea or 25 vomiting, fever or chills, abdominal pain, or significant changes in 26 weight or appetite, he nonetheless diagnoses plaintiff with decreased 27 sensation along the lateral aspect of the left arm from shoulder to the 28 left hand, uncertain etiology. We would defer to appropriate specialist (A.R. 23.) The fact that Indeed, it is unclear whether plaintiff was asked whether she had any upper extremity musculoskeletal Although Dr. Lee reports that plaintiff denies any other 10 1 for further evaluation and management. (A.R. 264, 267.) In view of 2 Dr. Lee s express deference to the appropriate specialist for further 3 evaluation, the ALJ should have inquired further regarding the extent to 4 which plaintiff s upper extremity limitation(s) may impact her ability 5 to work. 6 7 Further, the ALJ improperly rejected Dr. Hay s opinion in his 8 November 2003 assessment that plaintiff should be limited to a less 9 than sedentary work capacity, with indication that [plaintiff] would 10 miss work 3 or more days a month, can never engage in postural 11 activities, would need to take unscheduled breaks, etc. 12 The ALJ based his rejection of Dr. Hay s opinion on the fact that it is 13 purportedly inconsistent with his 2004 report and is not supported by 14 this earlier narrative report or by other evidence. 15 this rationale is not supported by substantial evidence. 16 ALJ fails to identify any inconsistencies whatsoever between the two 17 reports and fails to provide any legitimate reasons for rejecting Dr. 18 Hay s opinions regarding plaintiff s physical limitations. 19 failure to do so constitutes error. (A.R. 23.) (Id.) However, In fact, the The ALJ s 20 21 On remand, plaintiff s physical limitations and the extent, if any, 22 to which they impact her ability to work, should be assessed on a fully 23 developed record in accordance with the appropriate legal standards. 24 25 /// 26 27 /// 28 11 1 II. The ALJ Failed To Provide Specific And Legitimate Reasons Supported 2 By Substantial Evidence For Rejecting Portions Of Plaintiff s 3 Treating Physician s Opinions Regarding Plaintiff s Mental RFC. 4 5 In his decision, the ALJ rejected certain findings of plaintiff s 6 treating psychiatrist, Thomas Curtis, M.D., without providing specific 7 and legitimate reasons for doing so. 8 contains 9 plaintiff s psychological conditions, as well as a comprehensive review a thorough analysis of, Dr. Curtis 21-page report and test results reflecting, 10 of plaintiff s medical records. 11 the impact plaintiff s present mental functioning may have on her 12 ability to engage in sustained, full-time work. 13 asserts that plaintiff s mental limitations are somewhat greater than 14 [those] 15 suggests. 16 the possibility that [plaintiff] has materially worsened since Dr. 17 Bagner s March 2003 report or since August 2004, the ALJ nonetheless 18 concludes that plaintiff s mental limitations are not as severe as Dr. 19 Curtis opines. 20 consultative psychiatric evaluation was unimpressive, the ALJ should 21 not have disregarded Dr. Curtis report without setting forth legally 22 sufficient reasons for doing so. assessed by (A.R. 25.) Dr. In his report, Dr. Curtis opines as to Bagner, but less (A.R. 662.) severe than Dr. The ALJ Curtis Although the ALJ claims that he has considered (A.R. 25.) As the ALJ concedes that Dr. Bagner s (Id.) 23 24 The ALJ s primary reasons for rejecting portions of Dr. Curtis 25 opinions6 -- specifically the opinions set forth in Dr. Curtis 2005 26 27 28 6 In October 2003, Dr. Curtis classified plaintiff s mental restrictions as follows: moderate ability to understand and remember short, simple instructions; moderate ability to carry out short, 12 1 report -- are as follows: 2 to attempt to qualify [plaintiff] for benefits (A.R. 25); (2) Dr. 3 Curtis s 4 [plaintiff s] emotional overlay, as plaintiff did not emphasize her 5 mental problems at the hearing (id.); (3) the 2003 assessment of 6 consultative examiner, Ernest Bagner, M.D.7, seems to better describe 7 reality 8 [plaintiff s] daily activities, overall presentations, and all other 9 factors (id.); and (4) plaintiff reports that she has benefitted from 10 assessments than does in Dr. (1) Dr. Curtis 2005 report was likely done narratives Curtis generally most recent appear report, to in overstate light of psychotherapy and psychotropic medications (A.R. 24). 11 12 13 24 simple instructions; marked ability to understand, remember, and carry out detailed instructions; marked ability to make judgments on simple work-related decisions; marked ability to interact appropriately with the public; moderate ability to interact appropriately with supervisor(s), co-workers; moderate-to-marked ability to respond appropriately to work pressures; and marked ability to respond appropriately to changes in a routine work setting. (A.R. 563-64.) In August 2004, Dr. Curtis assessed a slight-to-moderate limitation in all eight of the rated functions and concluded that the psychological test results confirmed residual abnormal levels of anxiety, somatization, hopelessness and depression with fatigue, low self-esteem and feelings of sadness. (A.R. 582, 586-87.) These eight rated functions assess one s ability to: comprehend and follow instructions; perform simple and repetitive tasks; maintain work pace; perform complex and varied tasks; relate to other people; influence people; generalizations, evaluations or decisions; and accept and carry out responsibility. Finally, in June 2005, Dr. Curtis rated most of the previously identified eight functions as moderately impaired, with a slight-to-moderate rating in plaintiff s ability to comprehend and follow instructions, and to perform simple and repetitive tasks. Dr. Curtis further opined that plaintiff had a marked degree of impairment at about 60% standard level, and she had worsened. (A.R. 659-61.) 25 7 14 15 16 17 18 19 20 21 22 23 26 27 28 Dr. Bagner diagnosed only a non-specific depressive disorder. He assessed zero to no limitations in [plaintiff s] ability to interact with supervisors, peers and the public, to handle normal stresses at work, to maintain concentration and attention, and to complete simple tasks. He assessed mild limitations in her abilities to complete complex tasks and to complete a normal workweek without interruption. (A.R. 25, 260 63.) 13 1 Plaintiff contends, and the Court agrees, that the ALJ improperly 2 and unfairly rejected the report from Dr. Curtis, dated June 16, 2005 3 (AR 643-664), submitted post-hearing on the basis of his unwarranted 4 speculation that this report, which was completed only a few days after 5 the hearing, was likely done to attempt to qualify [plaintiff] for 6 benefits (AR 24-25). 7 foundation and is not a legally sufficient ground upon which to reject 8 a treating doctor s report. 9 Cir. 1995)( The purpose for which medical reports are obtained does not 10 provide a legitimate basis for rejecting them. ); see also Ratto v. 11 Sec y., 839 F. Supp. 1415, 1426 (D. Or. 1993)(an ALJ may not assume 12 that doctors routinely lie in order to help their patients collect 13 disability benefits). 14 improprieties, no such evidence exists here. 15 Thus, the fact that Dr. Curtis report was prepared in connection with 16 plaintiff s worker s compensation case is of no moment, and Dr. Curtis 17 report constitutes substantial evidence regarding the extent to which 18 plaintiff s mental impairment may have worsened over time. Accordingly, 19 the ALJ s rejection of Dr. Curtis 2005 report on this basis is 20 reversible error. (Joint Stip. at 19.) The ALJ s assertion lacks See Lester v. Chater, 81 F.3d 821, 832 (9th While the ALJ may introduce evidence of actual Lester, 81 F.3d at 832. 21 22 Further, the ALJ also impermissibly rejected Dr. Curtis 23 assessments in narratives on the ground that they overstate[d] 24 plaintiff s emotional overlay, because plaintiff did not emphasize 25 depression or anxiety at the hearing. 26 is 27 plaintiff s mental impairments. 28 testified to having anxiety attacks and symptoms of depression, such as factually inaccurate and (A.R. 25.) improperly minimizes This stated reason the severity of In fact, at the hearing, plaintiff 14 1 lack of sleep, fatigue, and forgetfulness. 2 further 3 prescribed by Dr. Curtis and was attending therapy once a week. 4 676, 678.) 5 mental conditions borders on a mischaracterization of the record and is 6 not a legally sufficient reason to minimize the severity of plaintiff s 7 mental limitations or reject the opinions of Dr. Curtis. If the ALJ 8 required extent 9 plaintiff s mental impairments, then the ALJ should have asked further, 10 testified that she was taking (A.R. 675-76.) medications for Plaintiff depression (A.R. The ALJ s assertion that plaintiff did not emphasize her further, more specific details regarding the of more specific questions. 11 12 In addition, the ALJ impermissibly relied on plaintiff s ability to 13 do household chores, shop and cook to support his rejection of Dr. 14 Curtis 15 disability claimants should not be penalized for attempting to lead 16 normal lives in the face of their limitations. 17 722. 18 plaintiff to vegetate in a dark room in order to be deemed eligible 19 for benefits. 20 Plaintiff s efforts to care for herself do not translate into an ability 21 to engage in substantial gainful activity and do not constitute a valid 22 reason for rejecting Dr. Curtis opined limitations. opinion. (A.R. 25.) It is well-settled, however, that Reddick, 157 F.3d at It would be highly inappropriate and unreasonable to require Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). 23 24 Finally, the ALJ impermissibly relied on evidence showing that 25 [plaintiff] has benefitted from counseling and psychotropic medications 26 to reject Dr. Curtis opinion regarding the severity of plaintiff s 27 mental limitations. 28 alleged onset date, plaintiff has been taking medication for her (A.R. 25.) It is important to note that, since her 15 1 physical and mental impairments. On September 21, 2001, plaintiff was 2 prescribed Vioxx and Paxil (which was later changed to Celexa) for 3 continued pain and symptoms of anxiety and depression. 4 2003, plaintiff reported to Dr. Bagner that she was taking the following 5 medications: 6 (A.R. 261.) 7 recently taken Celexa and BuSpar. 8 reported that she benefitted from participating in therapy and taking 9 medication, she never reported that she was cured. Plaintiff should not 10 be penalized for seeking treatment and taking medication for her 11 impairments and the ALJ s attempt to do so, as a justification for 12 rejecting Dr. Curtis opinion, constitutes error. (A.R. 647.) In Alprazolam, Celexa 20 mg BID, Sonata, Vioxx, and Motrin. As of June 16, 2005, Dr. Curtis reported that plaintiff had (A.R. 651.) Although plaintiff 13 14 III. Because The ALJ s Findings Regarding Plaintiff s Ultimate RFC Must 15 Be Reconsidered, Additional Vocational Expert Testimony Likely Will 16 Be Required. 17 18 Based on the fact that the ALJ s findings regarding plaintiff s 19 physical and mental 20 plaintiff s ultimate RFC assessment may change. 21 testimony of a vocational expert if the claimant has non-exertional 22 limitations, such as mental limitations. 23 (because the claimant had non-exertional limitations, it was error not 24 to seek the testimony of a vocational expert). 25 expert s 26 limitations, then it has no evidentiary value. 27 F.2d 28 vocational expert, the ALJ must fully and accurately reflect all of the testimony 418, 422-24 impairments is (9th not based Cir. must on 1987)(in 16 a be reevaluated on remand, An ALJ must seek the See Reddick, 157 F.3d at 729 If the vocational claimant s complete set of See Embrey v. Bowen, 849 posing a hypothetical to a 1 claimant s limitations). 2 3 IV. Remand Is Required. 4 5 Where, as in this case, there is error in the ALJ s findings and 6 the record may require further development, remand is appropriate to 7 allow the ALJ the opportunity to remedy the errors and inadequacies. 8 See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)(when there are 9 outstanding issues that must be resolved before the question of 10 disability can be determined, remand is appropriate); McAllister v. 11 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)(remand appropriate to remedy 12 defects in the record). 13 14 CONCLUSION 15 16 Accordingly, for the reasons stated above, IT IS ORDERED that the 17 decision of the Commissioner is REVERSED, and this case is REMANDED for 18 further proceedings consistent with this Memorandum Opinion and Order. 19 20 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 21 copies of this Memorandum Opinion and Order and the Judgment on counsel 22 for plaintiff and for defendant. 23 24 LET JUDGMENT BE ENTERED ACCORDINGLY. 25 26 27 DATED: September 19, 2008 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 28 17
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