Mary L Gillett v. Michael J Astrue, No. 2:2007cv03860 - Document 17 (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 is 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 MARY L. GILLETT, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________) NO. CV 07-03860-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 14, 2007, seeking review of the 19 denial by the Social Security Commissioner ( Commissioner ) of her 20 application for disability insurance benefits ( DIB ). 21 the parties consented to proceed before the undersigned United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 Joint Stipulation on January 10, 2008, in which Plaintiff seeks an order 24 reversing 25 calculation and award of benefits or, in the alternative, remanding the 26 matter for a new administrative hearing; and Defendant seeks an order 27 affirming the Commissioner s decision. The Court has taken the parties 28 Joint Stipulation under submission without oral argument. the Commissioner s decision and Subsequently, The parties filed a remanding solely for SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 Plaintiff claims to have been disabled since March 5, 2001, due to 4 a slip and fall injury sustained while working as a teacher s aide. 5 (Administrative Record ( A.R. ) 1137.) 6 depression, fibromyalgia,1 status post cervical fusion, and a left 7 shoulder impairment. (Id.) Plaintiff has past relevant work experience 8 as a teacher s aide, a cashier, and an apartment manager. 9 129.) Plaintiff claims to suffer from (A.R. 94, 10 Plaintiff filed her application for DIB on July 1, 2002. 11 (A.R. 12 79.) The Commissioner denied Plaintiff s claim initially and upon 13 reconsideration. 14 represented 15 Alexander Weir ( ALJ ). 16 the ALJ denied Plaintiff s claim. 17 subsequently denied Plaintiff s request for review of that decision. 18 (A.R. 8.) by (A.R. 38.) counsel, On February 24, 2006, Plaintiff, who was appeared before (A.R. 1118-58.) Administrative Law Judge Thereafter, on June 27, 2006, (A.R. 19-35.) The Appeals Council 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 The ALJ found that Plaintiff has the following physical 23 impairments: 24 cervical spine and lumbar spine; (2) fibromyalgia; and (3) mild obesity. 25 (A.R. 34.) (1) a back disorder consisting of disc disease of the The ALJ determined that Plaintiff s physical impairments 26 1 27 28 Fibromyalgia is a syndrome involving chronic widespread and diffuse pain through the entire body, frequently associated with fatigue, stiffness, skin tenderness, and fragmented sleep. Estok v. Apfel, 152 F.3d 636 n.1 (7th Cir. 1998). 2 1 have more than a minimal effect on her basic work abilities and, thus, 2 qualify as severe impairments. 3 Plaintiff s impairments do not meet or medically equal the criteria of 4 an impairment listed in Appendix 1, Subpart P, Regulation No. 4. 5 Additionally, the ALJ found that Plaintiff has the following mental 6 impairments, which he concluded were not severe: 7 related to general physical condition; and (2) somatoform disorder. 8 (Id.) 9 limitations were not credible. (Id.) The ALJ concluded, however, that (Id.) (1) mental depression The ALJ further found that Plaintiff s allegations regarding her (A.R. 35.) Based on Plaintiff s 10 medical records and the testimony of a vocational expert ( VE ), the ALJ 11 concluded that Plaintiff has the residual functional capacity to perform 12 light work with limitations, and therefore, she can perform her past 13 relevant work as an apartment manager. 14 found that Plaintiff was not disabled within the meaning of the Social 15 Security Act during the relevant time period. (Id.) Consequently, 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). 27 record can constitute substantial evidence, only those reasonably 28 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 inferences from the Widmark v. Barnhart, 454 F.3d 1 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. 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 Desrosiers v. Sec y of 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. Burch v. 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. However, the Court may Orn, 495 F.3d The Court will not reverse 25 26 DISCUSSION 27 28 Plaintiff alleges the following three issues: 4 (1) whether the ALJ 1 erred in failing to make proper credibility findings; (2) whether the 2 ALJ properly rejected treating source opinions regarding Plaintiff s 3 physical residual functional capacity; and (3) whether the ALJ erred in 4 finding at step two that Plaintiff s mental impairments were not legally 5 severe. The Court addresses these issues, and one other, below. 6 7 I. The ALJ Arbitrarily Discredited Plaintiff s Testimony Regarding Her Subjective Pain And The Side Effects Of Her Medications. 8 9 10 Once a disability claimant produces evidence of an underlying 11 physical impairment that is reasonably likely to be the source of her 12 subjective symptom(s), all subjective testimony as to the severity of 13 the symptoms must be considered. 14 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 15 2001)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining how pain 16 and other symptoms are evaluated). 17 malingering based on affirmative evidence thereof, he or she may only 18 find an applicant not credible by making specific findings as to 19 credibility 20 Robbins, 466 F.3d at 883. 21 be sufficiently specific to allow a reviewing court to conclude that 22 the ALJ rejected the claimant s testimony on permissible grounds and did 23 not arbitrarily discredit the claimant s testimony. 24 885. 25 what evidence undermines the claimant s complaints. Reddick v. Chater, 26 157 F.3d 715, 722 (9th Cir. 1998). and stating It is the ALJ s clear Moisa v. Barnhart, 367 F.3d 882, 885 Unless an ALJ makes a finding of and convincing reasons for each." Further, the ALJ s credibility findings must Moisa, 367 F.3d at duty to identify what testimony is credible and 27 28 The ALJ does not dispute that 5 Plaintiff has sufficiently 1 demonstrated objective evidence of physical impairments. However, the 2 ALJ found that Plaintiff s subjective testimony regarding her condition 3 was not fully credible for three reasons. (A.R. 31.) 4 5 First, the ALJ notes that Plaintiff s treatment has generally been 6 conservative, because she has not undergone any surgeries since 2001, 7 and she has not been hospitalized for her pain. 8 Plaintiff does not spend her days in the emergency room, she does have 9 scheduled monthly visits with her doctors. (A.R. 31.) (A.R. 159.) Although Plaintiff also 10 participates in physical therapy twice a week. 11 addition, Plaintiff undergoes weekly individual psychotherapy. 12 1074.) 13 not 14 Plaintiff s subjective testimony. 15 other cure for fibromyalgia, which can be a debilitating disease. 16 Jordan v. Northrop Grumman Corp. Welfare Plan, 370 F.3d 869, 872 (9th 17 Cir. 2004)(recognizing that there is no cure for fibromyalgia). Indeed, 18 it 19 Plaintiff should have received. In (A.R. Given the nature and extent of Plaintiff s treatment, it does appear is (A.R. 120.) that wholly it is unclear so conservative what as to call into question Further, there is no surgical or additional treatment the ALJ See believes 20 21 Second, the ALJ inaccurately states that Plaintiff has never 22 alleged that she experiences adverse side effects from her medication. 23 (A.R. 32.) 24 2002, Plaintiff stated that between the daily pain through the body and 25 all the medication for pain, [she suffers from] depression, anxiety, 26 fatigue, 27 irritable. In fact, in a daily activities questionnaire dated July 15, constipation, upset stomach, (A.R. 119; emphasis added.) 28 6 ear pain, [and is] always 1 When an ALJ evaluates a claimant s limitations, he must consider 2 evidence regarding the side effects of medications. 3 Ruling 96-7p requires consideration of the type, dosage, effectiveness, 4 and side effects of any medication the individual takes or has taken to 5 alleviate 6 416.929(c)(3)(iv). 7 effects of medications can have a significant impact on an individual s 8 ability to work and should figure in the disability determination 9 process. pain or other symptoms. See also Social Security 20 C.F.R. § The Ninth Circuit has observed that the side Varney v. Sec y of Health & Human Servs., 846 F.2d 581, 585 10 (9th Cir. 1988). Like pain, side effects can be a highly idiosyncratic 11 phenomenon, and a claimant s testimony as to their limiting effects 12 should not be trivialized. Id. 13 14 The ALJ fails to mention 18 of the 19 medications that Plaintiff 15 has been prescribed and to consider the toll such medications have on 16 Plaintiff s mind and body. 17 See Rabadi v. Astrue, 2008 WL 2490188, *2 (9th Cir. 2008)(rejecting the 18 ALJ s determination that the claimant was not entitled to benefits, 19 because the ALJ failed to take into consideration side effects of his 20 medication and all of his impairments, whether severe or not, in 21 combination ). Such an oversight has been deemed an error. 22 23 Third, the ALJ asserts that Plaintiff s daily activities undermine 24 her claim, because [i]t is doubtful that an individual with the severe 25 pain and limitations asserted by the claimant would do chores such as 26 cleaning up around the apartment and washing dishes, as well as do her 27 own shopping. (A.R. 32.) However, disability claimants should not be 28 penalized for attempting to lead normal lives in the face of their 7 1 limitations. Reddick, 157 F.3d at 722. 2 require a claimant to vegetate in a dark room in order to be deemed 3 eligible for benefits. 4 transferrable to . . . the more grueling environment of the workplace, 5 where it might be impossible to periodically rest or take medication. 6 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Id. It would be unreasonable to Many home activities are not easily 7 8 Plaintiff states that she can lift her own shampoo bottle in the 9 shower and go shopping, but when she does go shopping, she takes her 10 husband or children with her to carry the heavier items. 11 Further, although Plaintiff can dress herself, she needs help fixing her 12 bra straps and putting on her belt. 13 activities 14 credibility and establish her ability to engage in a full-time job. are not so physically (A.R. 119.) demanding as (A.R. 120.) Plaintiff s daily to undermine her 15 16 As Plaintiff s complaints regarding her subjective limitations and 17 medication side effects may have a significant impact on her ability to 18 engage in light work, the ALJ erred in failing to set forth clear and 19 convincing reasons for discounting them. 20 21 II. The ALJ Failed To Provide Specific, Legitimate Reasons Supported By 22 Substantial Evidence For Rejecting Plaintiff s Treating Physicians 23 Opinions. 24 25 A treating physician s conclusions must be given substantial Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even 26 weight. 27 where treating physician s opinions are contradicted, if the ALJ wishes 28 to disregard the opinion[s] of the treating physician he . . . must make 8 1 findings setting forth specific, legitimate reasons for doing so that 2 are based on substantial evidence in the record. 3 F.2d 643, 647 (9th Cir. 1987); see also Magallanes v. Bowen, 881 F.2d 4 747, 751 (9th Cir. 1989)(opinions of treating physicians are entitled to 5 great deference). Winans v. Bowen, 853 6 7 In this case, the ALJ found that Plaintiff has the residual 8 functional capacity for light work2 with limitations.3 9 making this determination, the ALJ rejected the findings of two of (A.R. 33.) In 10 Plaintiff s treating physicians, Drs. Gil Tepper and Allen Salick. 11 ALJ rejected Dr. Tepper s finding that, unless Plaintiff s fibromyalgia 12 went into complete remission, she was unemployable and unable to 13 participate in the open labor market. 14 rejecting Dr. Tepper s opinion, the ALJ asserts that, since 2002, no 15 other doctor of record has found Plaintiff on examination to have more 16 than slight reduction of neck motion.4 17 note that Plaintiff has been receiving care from Dr. Tepper since her 18 slip and fall accident in 2001, and there are countless pages of medical (A.R. 26.) (A.R. 27.) The As his basis for But the ALJ fails to 19 2 20 21 22 23 Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds, and may involve a good deal of walking, standing, or sitting while pushing and pulling arm and leg controls. To be considered capable of performing the full range of light work, the claimant must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b). 3 24 25 26 Such limitations include the ability to: sit or stand as needed; avoid overhead work and extreme torqueing; avoid working at heights and around moving machinery and other hazards. However, she is capable of gripping and grasping both occasionally and frequently, but not more than frequently (i.e., constantly or repetitively). (A.R. 33.) 4 27 28 Because one of the principal symptoms of fibromyalgia is stiffness, McFadden v. Barnhart, 2002 WL 31031305, *1 n.1 (N.D. Cal. 2002) (citations omitted), the ALJ believed it was necessary to dispel Dr. Tepper s opinion regarding Plaintiff s reduction in neck motion. 9 1 reports regarding her care by Dr. Tepper. Because Plaintiff has been 2 treated by Dr. Tepper on countless occasions, it seems unreasonable for 3 the ALJ to point to one conclusion in Dr. Tepper s medical records, 4 which differs from those of other medical experts, to claim that his 5 entire medical history of Plaintiff is not credible. 6 7 The ALJ also disregarded the opinion of Dr. Salick, Plaintiff s 8 treating rheumatologist. Dr. Salick noted that Plaintiff s fibromyalgia 9 has left her unable to compete in an open labor market, and thus, she is 10 in a permanent, stationary, and totally disabled condition. (A.R. 25) 11 In disregarding Dr. Salick s opinion, the ALJ concluded that, although 12 Dr. Salick s report conveys that [Plaintiff] had some pain due to 13 fibromyalgia, the evidence does not establish that the pain was so 14 severe as to be disabling. 15 claimant to an emergency room. 16 Plaintiff did not seek emergency room treatment does not qualify as a 17 specific, legitimate reason for rejecting Dr. Salick s opinion. 18 the ALJ states that the only objective factor cited in Dr. Salick s 19 records to support his fibromyalgia diagnoses of Plaintiff was [the 20 presence of] tender points of fibromyalgia. (A.R. 26.) The ALJ failed 21 to mention, however, that the tender points test is the principal 22 diagnostic test for fibromyalgia.5 For example, Dr. Salick did not refer the (A.R. 26.) The mere fact that Also, 23 5 24 25 26 27 28 The principal symptoms [of fibromyalgia] are pain all over, fatigue, disturbed sleep, stiffness, and the only symptom that discriminates between it and other diseases of a rheumatic character multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that a patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. All of these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause a patient who really has fibromyalgia to flinch. McFadden, 2002 WL 31031305 at *1 n.1. 10 1 Accordingly, the reasons provided by the ALJ for rejecting the 2 opinions of Plaintiff s treating physicians, Drs. Tepper and Salick, are 3 not legitimate. 4 5 6 III. The Record Must Be Further Developed Regarding The Severity Of Plaintiff s Mental Condition. 7 8 A severe impairment (or combination of impairments) is defined as 9 one that significantly limits physical or mental ability to do basic 10 work activities. 20 C.F.R. § 404.1520(c). Basic work activities have 11 been defined as the abilities and aptitudes necessary to do most jobs. 12 20 C.F.R. § 404.152(b)(3)-(6). 13 basic work activities include use of judgment; responding appropriately 14 to supervision, co-workers and usual work situations; and dealing with 15 changes in a routine work setting. With regard to mental function, these Id. 16 17 The Supreme Court has recognized that including a severity 18 inquiry at stage two of the evaluation process increases the efficiency 19 and reliability of the evaluation process by identifying at an early 20 stage those claimants whose medical impairments are so slight that it is 21 unlikely that they would be found disabled even if their age, education, 22 and experience were taken into account. 23 137, 153 (1987); see also Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 24 1994). 25 when the medical evidence establishes only a slight abnormality . . . 26 which would have no more than a minimal effect on a claimant s ability 27 to work. 28 Social Security Ruling 85-28). Bowen v. Yuckert, 482 U.S. Accordingly, an impairment should be found to be non-severe Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)(citing 11 1 Despite use of the term severe, most circuits, including the 2 Ninth Circuit, have held that the step two inquiry is a de minimis 3 screening devise to dispose of groundless claims. 4 F.3d 1273, 1290 (9th Cir. 1996). 5 1273, 1290 (9th Cir. 1996); Hudson v. Bowen, 870 F.2d 1392, 1396 (8th 6 Cir. 1989)(evaluation can stop at step two only when there is no more 7 than a minimal effect on a claimant s ability to work). Smolen v. Chater, 80 See, e.g., Hawkins v. Chater, 113 F.3d 8 9 The ALJ determined that Plaintiff does not have a severe mental 10 impairment. The ALJ specifically bases that finding on the testimony of 11 the Social Security Administration s psychiatrist, Dr. Nathan Lavid, who 12 diagnosed Plaintiff with a mild level of severity from her mental 13 condition and gave her a GAF score of 65. 6 14 Dr. Lavid and the GAF score with which he assessed Plaintiff, the ALJ 15 brushed aside four other GAF scores submitted by Plaintiff s treating 16 psychiatrists, Polyak. Plaintiff s 17 treating psychiatrists put her in a GAF range of 41-55.7 (A.R. 28-30.) Drs. David Friedman and (A.R. 32.) Inge In relying on 18 19 The ALJ expressly gave less weight to the treating psychiatrists 20 opinions, because he found them to be exaggerated and unsupported by the 21 22 23 24 25 26 27 28 6 GAF is a scale reflecting the psychological, social, and occupational function on a hypothetical continuum of mental healthillness. American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 34 (4th ed. Text Revision, 2000) ( DSM IV-TR ). A GAF score between 61-70 indicates some mild symptoms. Id. 7 A GAF score between 41-50 indicates serious symptoms (e.g., suicidal ideation) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job. A GAF score between 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning (e.g., a few friends, conflicts with peers or co- workers). DSM IV-TR at. 34. 12 1 medical record as a whole. 2 very little weight to Dr. Polyak s determination that Plaintiff suffered 3 from major depression, because he found that there were no narrative 4 progress records from the doctor that established Plaintiff experienced 5 symptoms and signs consistent with the problems her doctor listed in the 6 questionnaire. 7 need for further evidence regarding Dr. Polyak s determination that 8 Plaintiff suffered from major depression and had symptoms that included 9 depression, anxiety pain, insomnia, social isolation, cry spells, fear, (A.R. 30.) (A.R. 28-31.) Specifically, the ALJ gave However, if the ALJ believed there was a 10 loss 11 diminished energy an anger (A.R. 563), then the ALJ had the duty to 12 further develop the record to resolve any ambiguities. 13 F.3d at 1288 (noting that the ALJ has a duty to conduct an appropriate 14 inquiry if he needed to know the basis for the treating physicians 15 findings). of function, irritability, poor memory and concentration, See Smolen, 80 16 17 Further, the ALJ rejected Dr. Friedman s diagnosis of Plaintiff, 18 because 19 Plaintiff suffered from major depression was overstated. 20 Additionally, the ALJ discredits Dr. Friedman s diagnosis, because he 21 failed to explain why on June 8, 2005, he assessed Plaintiff with a GAF 22 score of 41, which was lower than Plaintiff s GAF score of 55 assessed 23 in 24 limitations at the time her GAF score was lower. 25 ALJ found that Dr. Friedman s conclusions were ambiguous, it was his 26 duty to develop the record further, rather than disregarding Dr. 27 Friedman entire testimony. the August ALJ 2001, believed but that opined the that 28 13 psychiatrist s she had less diagnosis severe (Id.) that (A.R. 30.) functional Again, if the Finally, it is inappropriate for an ALJ to substitute his own 1 2 medical judgment for that of the treating physician. 3 Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999); Day v. Weinberger, 522 F.2d 4 1154, 1156 (9th Cir. 1975)(recognizing that an ALJ is forbidden from 5 making his own medical assessments beyond those demonstrated by the 6 record). 7 of Dr. Polyak. 8 actually had the major problems noted in [Dr. Polyak s] questionnaire, 9 it is likely that she would be seen by a psychiatrist or psychologist 10 See Tackett v. In this case, the ALJ substituted his own diagnosis for that For example, the ALJ stated that if the claimant more often than once every 1-2 months. (A.R. 30.) 11 12 Although such a determination is better left to medical experts, 13 the mere fact that 14 medications 15 Zonegran) (A.R. 29; J.S. 14, 20) suggests that she would likely meet the 16 de minimis severity standard. 17 the ALJ focus on developing the medical testimony to determine properly 18 the severity of Plaintiff s mental impairments. (i.e., Plaintiff Zoloft, is Ativan, prescribed Buspar, several Elavil, psychological Tradazone, and Thus, on remand, it is imperative that 19 20 IV. The ALJ Mischaracterized The Record To Support His Decision. 21 22 Although not raised by Plaintiff as a legally significant error, 23 the ALJ s decision rests on several mischaracterizations of the record. 24 25 First, the ALJ recognizes that Plaintiff had been prescribed 26 moderately strong pain medication, Vicodin, and other medications to 27 reduce her pain. 28 Plaintiff is, in fact, taking 18 other medications to alleviate her (A.R. 32.) The ALJ s decision fails to note that 14 1 symptoms, including at least four at a maximum dosage. (A.R. 598.) 2 Plaintiff was prescribed the following drugs: 3 (3) Pamelor; (4) Neurontin; (5) Ativan; (6) Zonegran; (7) Elavil; (8) 4 Zoloft; (9) Trazadone; and (10) Buspar. 5 been prescribed the following medications: 6 (3) Protonix; (4) Zonegram; (5) Provigil; (6) Chlorhexidine Gluconale; 7 (7) Lozi; (8) Cephalexin; and (9) Ambien. 8 drugs, with the exception of Vicodin, was explicitly mentioned in the 9 ALJ s decision. (1) Vicodin; (2) Soma; Additionally, Plaintiff has (1) Frorinal; (2) Motrin; (A.R. 116-17.) None of these Also, the ALJ did not include a list of the medications 10 Plaintiff was prescribed or reference any of the medications side 11 effects when presenting his hypothetical to the VE. 12 disability 13 disability must be accurate and detailed. 14 On remand, for the VE to make an accurate finding regarding Plaintiff s 15 ability to perform her past relevant work, it is necessary for the ALJ 16 to include in his hypothetical all medications Plaintiff has been 17 prescribed and any side effects of such medications which Plaintiff 18 experiences. determination, the ALJ s description of When making a the claimant s Tackett, 180 F.3d at 1101. 19 20 Second, the ALJ mischaracterizes Plaintiff s size. In his 21 decision, the ALJ finds that Plaintiff suffers from mild obesity. (A.R. 22 32.) 23 generally weigh[s] around 200 pounds . . . and is 65 inches tall . 24 (Id.) 25 fluctuated up to 222 pounds, and inexplicably, medical records describe 26 her height as anywhere between five feet two inches and five feet five 27 inches. 28 medical records in the voluminous file shows a diagnosis of obesity. In reaching this conclusion, the ALJ noted that Plaintiff However, the ALJ fails to note that Plaintiff s weight has (A.R. 456.) Beyond this, the ALJ stated that none of the 15 1 (A.R. 32.) As a result, the ALJ found that Plaintiff was only mildly 2 obese when determining the severity of Plaintiff s impairments. 3 32, 34.) 4 stated that Plaintiff was noticeably obese. (A.R. However, in Dr. Friedman s report dated August 23, 2001, he (A.R. 185.) 5 6 The ALJ s materially inaccurate characterization of the evidence 7 compounds the error in his decision in this case. 8 See Regennitter v. Comm r, 166 F.3d 1294, 1297 (9th Cir. 1999). 9 10 V. Remand Is Required. 11 12 The decision whether to remand for further proceedings or order an 13 immediate award of benefits is within the district court s discretion. 14 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 15 useful purpose would be served by further administrative proceedings, or 16 where the record has been fully developed, it is appropriate to exercise 17 this discretion to direct an immediate award of benefits. 18 ( the decision of whether to remand for further proceedings turns upon 19 the likely utility of such proceedings ). 20 outstanding issues that must be resolved before a determination of 21 disability can be made, and it is not clear from the record that the ALJ 22 would be required to find the claimant disabled if all the evidence were 23 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. 24 25 Here, remand is the appropriate remedy to allow the ALJ the 26 opportunity to remedy the above-mentioned deficiencies and errors. See, 27 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 28 further proceedings is appropriate if enhancement of the record would be 16 1 useful); McAllister v. Sullivan, 2 1989)(remand appropriate to remedy defects in the record). 888 F.2d 599, 603 (9th Cir. 3 4 CONCLUSION 5 6 Accordingly, for the reasons stated above, IT IS ORDERED that the 7 decision of the Commissioner is REVERSED, and this case is REMANDED for 8 further proceedings consistent with this Memorandum Opinion and Order. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 11 copies of this Memorandum Opinion and Order and the Judgment on counsel 12 for Plaintiff and for Defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 17 18 DATED: November 25, 2008 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 17

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