Ligia I Baylon v. Michael J Astrue, No. 2:2007cv06063 - Document 17 (C.D. Cal. 2008)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administartive action consistent with this Opinion. LET JUDGMENT BE ENTERED ACCORDINGLY. (SEE ORDER FOR FURTHER DETAILS) (vm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LIGIA I. BAYLON, 12 Plaintiff, 13 v. 14 15 16 17 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 07-6063 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On September 18, 2007, plaintiff Ligia I. Baylon ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 20, 2007 Case Management Order, ¶ 5. /// 1 Based on the record as a whole and the applicable law, the decision of the 1 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 In May 2005, plaintiff filed an application for Disability Insurance Benefits. 7 (Administrative Record ( AR ) 55-59). Plaintiff asserted that she became 8 disabled on March 31, 2005, due to lymphedema and side effects from the removal 1 9 of lymph nodes. (AR 68-69). An Administrative Law Judge ( ALJ ) examined 10 the medical record and heard testimony from plaintiff and a vocational expert on 11 August 8, 2006. (AR 201-230). On September 26, 2006, the ALJ determined that plaintiff was not disabled 12 13 through the date of the decision. (AR 16-23). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: status post situ 15 ductal carcinoma; invasive, well-differentiated grade I tumor of the right breast; 16 axial lymph node dissection; and removal of 47 lymph nodes (AR 18); 17 (2) plaintiff s impairments or combination of impairments did not meet or 18 medically equal one of the listed impairments (AR 19); (3) plaintiff retained the 2 19 residual functional capacity to perform a range of light exertion work and, more 20 specifically: (a) could lift and carry 20 pounds occasionally and 10 pounds 21 frequently; (b) could sit, stand, and walk without significant limitations; and 22 (c) could occasionally push and pull with the right upper extremity (AR 19); 23 (4) plaintiff could perform her past relevant work as a chef as it is generally 24 1 Lymphedema, a condition which may develop when lymph nodes are removed, is an 25 abnormal build up of fluid that causes swelling. 26 2 Light work involves lifting no more than 20 pounds at a time with frequent lifting or 27 carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or 28 standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. To be considered capable of performing a full or wide range of light work, one must have the ability to do substantially all of these activities. Id. 2 1 performed (AR 22); and (5) plaintiff s allegations regarding her limitations were 2 not totally credible. (AR 19, 21-22). 3 The Appeals Council denied plaintiff s application for review on July 27, 4 2007. (AR 4-6). 5 III. APPLICABLE LEGAL STANDARDS 6 A. Sequential Evaluation Process 7 To qualify for disability benefits, a claimant must show that she is unable to 8 engage in any substantial gainful activity by reason of a medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of at least twelve 11 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 12 § 423(d)(1)(A)). The impairment must render the claimant incapable of 13 performing the work she previously performed and incapable of performing any 14 other substantial gainful employment that exists in the national economy. Tackett 15 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 16 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 17 sequential evaluation process: (1) Is the claimant presently engaged in substantial gainful activity? If 18 so, the claimant is not disabled. If not, proceed to step two. 19 20 (2) Is the claimant s alleged impairment sufficiently severe to limit 21 her ability to work? If not, the claimant is not disabled. If so, 22 proceed to step three. 23 (3) Does the claimant s impairment, or combination of 24 impairments, meet or equal an impairment listed in 20 C.F.R. 25 Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If 26 not, proceed to step four. 27 /// 28 /// 3 (4) 1 Does the claimant possess the residual functional capacity to 2 perform her past relevant work?3 If so, the claimant is not 3 disabled. If not, proceed to step five. (5) 4 Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow her to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four, and the 11 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). B. Standard of Review 15 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of 16 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 /// 26 27 28 3 Residual functional capacity is what [one] can still do despite [one s] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. § 404.1545(a). 4 1 To determine whether substantial evidence supports a finding, a court must 2 consider the record as a whole, weighing both evidence that supports and 3 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 6 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 8 IV. DISCUSSION 9 A. 10 11 The ALJ s Residual Functional Capacity Assessment Is Not Supported by Substantial Evidence. Plaintiff contends that the ALJ failed properly to consider the medical 12 evidence in determining the extent of plaintiff s functional limitations in her right 13 upper extremity. (Plaintiff s Motion at 3). In particular, plaintiff argues that the 14 ALJ failed to give legally sufficient reasons for rejecting the opinion of plaintiff s 15 treating physician, Dr. Sharon Yee. (Plaintiff s Motion at 3, 5-9). As the ALJ 16 appears to have accepted Dr. Yee s observation that swelling persists in plaintiff s 17 right upper extremity, but adopted an unsupported limitation resulting therefrom, a 18 remand is appropriate. 19 20 1. Applicable Law In Social Security cases, courts employ a hierarchy of deference to medical 21 opinions depending on the nature of the services provided. Courts distinguish 22 among the opinions of three types of physicians: those who treat the claimant 23 ( treating physicians ) and two categories of nontreating physicians, namely 24 those who examine but do not treat the claimant ( examining physicians ) and 25 those who neither examine nor treat the claimant ( nonexamining physicians ). 26 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (1996) (footnote 27 reference omitted). A treating physician s opinion is entitled to more weight than 28 an examining physician s opinion, and an examining physician s opinion is 5 1 entitled to more weight than a nonexamining physician s opinion.4 See id. In 2 general, the opinion of a treating physician is entitled to greater weight than that of 3 a nontreating physician because the treating physician is employed to cure and 4 has a greater opportunity to know and observe the patient as an individual. 5 Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 6 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.1987)). 7 The treating physician s opinion is not, however, necessarily conclusive as 8 to either a physical condition or the ultimate issue of disability. Magallanes v. 9 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 10 759, 761-62 & n. 7 (9th Cir. 1989)). Where a treating physician s opinion is not 11 contradicted by another doctor, it may be rejected only for clear and convincing 12 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 13 quotations omitted). The ALJ can reject the opinion of a treating physician in 14 favor of a conflicting opinion of another examining physician if the ALJ makes 15 findings setting forth specific, legitimate reasons for doing so that are based on 16 substantial evidence in the record. Id. (citation and internal quotations omitted); 17 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by 18 setting out detailed and thorough summary of facts and conflicting clinical 19 evidence, stating his interpretation thereof, and making findings) (citations and 20 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite 21 magic words to reject a treating physician opinion -- court may draw specific 22 and legitimate inferences from ALJ s opinion). The ALJ must do more than offer 23 his conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He 24 must set forth his own interpretations and explain why they, rather than the 25 26 27 28 4 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from nontreating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 6 1 [physician s], are correct. Id. Broad and vague reasons for rejecting the 2 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 3 602 (9th Cir. 1989). 4 The opinion of a nonexamining medical advisor cannot by itself constitute 5 substantial evidence that justifies the rejection of the opinion of an examining or 6 treating physician. Morgan, 169 F.3d at 602. However, an ALJ may reject the 7 opinion of a treating or examining physician based in part on the opinion of a 8 nontreating nonexamining physician, when consistent with other evidence in the 9 record. Id. 10 11 2. Pertinent Facts Plaintiff was diagnosed with, and treated for, right breast cancer in early 12 2001. (AR 198). She underwent surgery to remove the carcinoma and 47 lymph 13 nodes. (AR 181). Plaintiff also received radiation therapy and was prescribed 14 Tamoxifen. (AR 169, 171, 178, 181). There is no evidence of a recurrence of the 15 breast cancer. (AR 188). 16 On January 31, 2005, plaintiff reported to her oncologist, Dr. Grace Inouye, 17 that she felt discomfort in her right arm. (AR 127). Dr. Inouye observed swelling 18 in plaintiff s right hand and some fullness in her right forearm. (AR 124). She 19 diagnosed plaintiff with mild right arm lymphedema and prescribed antibiotics 20 and physical therapy. (AR 124). Dr. Inouye advised plaintiff to avoid using her 21 right arm for lifting heavy items. (AR 124). 22 On February 7, 2005, Dr. Inouye again noted swelling in plaintiff s right 23 hand and diagnosed [r]ight lymphedema, secondary to surgery for breast cancer. 24 (AR 124). She instructed plaintiff to avoid heavy lifting, constricting garment, 25 [and] trauma and injury to that arm. (AR 124). 26 On March 3, 2005, Dr. Inouye observed that plaintiff s lymphedema had 27 progressed to moderate. (AR 122). She noted that the antibiotics and physical 28 therapy did not relieve the swelling. (AR 122). Plaintiff reported to Dr. Inouye 7 1 that her work as a cook/manager exacerbated her condition but that elevating her 2 arm relieved her symptoms. (AR 122). 3 On April 1, 2005, Dr. Inouye observed improvement in plaintiff s right arm 4 with decreased use. (AR 120). She noted that plaintiff had stopped working as 5 a chef. (AR 120). 6 On June 28, 2005, Dr. Joseph Hartman, a state agency physician, reviewed 7 plaintiff s medical records through April 2005 and opined that plaintiff could 8 perform a full range of light work.5 (AR 153-61). Dr. Hartman did not impose 9 any push/pull or manipulative limitations. (AR 159). He indicated that although 10 plaintiff s allegations were credible, the persistence, intensity and functional 11 limitations were not fully credible, noting, for example, right upper extremity 12 improvement with massage. (AR 159). 13 On July 21, 2005, plaintiff began treatment with Dr. Sharon Yee, an 14 oncologist. (AR 190-92). Dr. Yee noted that plaintiff presented with significant 15 lymphedema on her right chest wall and marked lymphedema on her right arm. 16 (AR 191). Dr. Yee did not note any functional limitations. 17 On July 26, 2005, plaintiff sought treatment from Dr. Andrew Lee, who 18 noted that plaintiff was unable to close her right hand in a fist. (AR 164). He 19 diagnosed plaintiff with right upper extremity lymphedema - disabling. (AR 20 164). 21 On September 6, 2005, Dr. A. Lizarraras, a non-examining state agency 22 physician, reviewed plaintiff s medical records to July 2005. (AR 167). He 23 affirmed Dr. Hartman s residual functional capacity assessment as written. (AR 24 167). Although Dr. Yee saw plaintiff in July 2005, it does not appear that the 25 26 5 Dr. Hartman checked boxes on a residual functional capacity assessment form, opining 27 that plaintiff: (i) could lift and carry 20 pounds occasionally and 10 pounds frequently; (ii) could 28 sit, stand, and walk about six hours in an eight-hour workday; (iii) was otherwise unlimited in her ability to push and pull; and (iv) had no postural or manipulative limitations. (AR 155-57). 8 1 Commissioner had received, or that Dr. Lizarraras considered Dr. Yee s treatment 2 records in September 2005. (AR 100). It does, however, appear that Dr. Lee s 3 records had been obtained by September 2005, and were reviewed by Dr. 4 Lizarraras. (AR 100, 167). 5 On November 15, 2005, plaintiff again saw Dr. Yee who reported that 6 plaintiff had some shininess and swelling over the right hand secondary to 7 lymphedema. (AR 189). Dr. Yee also noted that plaintiff was experiencing 8 persistent and severe pain related to lymphedema in the right upper chest wall 9 and significant discomfort and difficulty moving her hands. (AR 189). Dr. 10 Yee advised plaintiff to return for treatment in four or five months. (AR 189). 11 In a letter dated January 19, 2006, Dr. Yee reported to Dr. Inouye that 12 plaintiff was somewhat incapacitated related to her lymphedema which is quite 13 debilitating and has caused her significant morbidity[.] (AR 188). In a letter 14 dated July 20, 2006, Dr. Yee wrote to the Social Security Administration stating 15 that plaintiff had significany [sic] morbidity from radiation and lymphedema ; 16 plaintiff suffered from chronic pain and neuropathy from the lymphedema; and 17 plaintiff was unable to make a fist or hold anything with her right hand. (AR 18 200). Dr. Yee opined that plaintiff was totally disabled and [could not] work as a 19 chef. (AR 200). 20 21 3. ALJ s Residual Functional Capacity Assessment As noted above, the ALJ determined that plaintiff could perform a range of 22 light exertion work, and more specifically: (i) could lift and carry 20 pounds 23 occasionally and 10 pounds frequently; (ii) could sit, stand, and walk without 24 significant limitations; and (iii) could occasionally push and pull with the right 25 upper extremity. (AR 19). 26 In assessing plaintiff with the foregoing residual functional capacity, the 27 ALJ generally relied upon the opinions of the nonexamining state agency 28 physicians, favoring such opinions over that of plaintiff s recent treating 9 1 physicians (Drs. Yee and Lee) and finding them to be the most consistent with 2 the medical record when viewed as a whole . (AR 19). However, contrary to the 3 state agency physicians assessment that plaintiff had no push/pull limitations, 4 the ALJ determined that plaintiff could only occasionally push and pull with the 5 right upper extremity. (AR 19). The ALJ imposed the latter limitation based on 6 recent medical evidence of swelling persisting in [plaintiff s] right upper 7 extremity[.] (AR 19) (citing AR 191). 8 The ALJ acknowledged that plaintiff s symptoms of lymphedema of her 9 right upper extremity were significant for short periods of time, but noted that her 10 treatment had not been consistent with what one would expect for someone whose 11 symptoms were allegedly persistent, profound and debilitating. (AR 20). He 12 pointed out that: (i) her condition had been evaluated only a handful of times since 13 March 2005; (ii) there was no indication in the treatment record that her doctors 14 saw a need to treat it aggressively; and (iii) during plaintiff s last medical 15 evaluation, her doctor advised her to come back in four or five months. (AR 20). 16 The ALJ expressly rejected the opinion of Dr. Yee contained in such 17 doctor s July 20, 2006 letter, stating: 18 In making the above residual functional capacity determination, 19 the undersigned considered the July 20, 2006 letter from Sharon Yee, 20 M.D., [plaintiff s] current oncologist (Exhibit 8F) [AR 299]. She 21 reports that [plaintiff] experiences chronic pain, lymphedema of the 22 right arm and right chest wall, with associated neuropathy and that 23 she is unable to make a fist or hold anything with her right hand. 24 Further, she claims that [plaintiff] is totally disabled and cannot 25 work as a chef. While the opinions of treating sources are generally 26 entitled to great weight, I cannot afford Dr. Yee s assessments 27 significant weight, in this case, for several reasons. To begin, she has 28 very limited treatment history with [plaintiff]. The record reveals that 10 1 she has examined [plaintiff] exactly twice, in July and then again in 2 November 2005. Thus, she simply does not have a strong 3 longitudinal understanding of [plaintiff s] medical conditions, which 4 might otherwise warrant great deference. Further, there is an inherent 5 inconsistency between her report and her actual treatment. Though 6 she reports that [plaintiff s] symptoms are debilitating, her treatment 7 has been limited and essentially nondescript. In fact, though she 8 claims that [plaintiff] experiences chronic pain, she has not prescribed 9 so much as an aspirin for this alleged pain. Further, she has not seen 10 the need to refer [plaintiff] to a medical specialist, who might be more 11 capable of treating allegedly disabling edema. Finally, her opinions 12 are clearly beyond the scope of her expertise. Determining whether 13 someone is totally disabled and/or unable to work as a chef, 14 requires not only utilization of medical knowledge, but a 15 comprehensive examination of vocational factors. In this case, there 16 is no evidence that Dr. Yee has any vocational expertise, and thus, 17 while she may be qualified to opine as to [plaintiff s] physical 18 limitations, she is not qualified to opine regarding that impact on 19 [plaintiff s] ability to perform work in the general economy. In sum, 20 Dr. Yee s assessment lacks basic indicia of reliability. 21 (AR 21). 22 4. 23 Although the Court finds that the ALJ articulated adequate reasons to reject Analysis 24 Dr. Yee s opinion,6 it nonetheless notes that the ALJ did accept as true, Dr. Yee s 25 26 6 As noted above, the ALJ rejected the majority of Dr. Yee s findings based upon (i) the 27 length of her treatment; (ii) the conservative nature of such treatment; and (iii) Dr. Yee s 28 rendering of an opinion beyond the scope of her expertise. The ALJ s findings concerning the (continued...) 11 1 observation (consistent with Dr. Lee s observation) that plaintiff continued to 2 experience significant swelling, i.e., persistent lymphedema , in her right upper 3 extremity. (AR 20). While it was within the purview of the ALJ to reject the 4 treating physicians opinions regarding the disabling nature of the limitations 5 allegedly resulting from such swelling, the ALJ clearly concluded, contrary to the 6 opinions of the state agency physicians, that plaintiff s condition did impact her 7 ability to function.7 However, the ALJ s assessment of the degree of plaintiff s 8 functional impairment, i.e., the limitation to occasional pushing/pulling is not 9 supported by evidence in the record. Rather, the ALJ s assessment appears to be 10 11 12 13 14 15 16 17 18 19 20 21 22 23 6 (...continued) lack of consistent and more aggressive treatment (e.g., pain medication) were specific and legitimate reasons for rejecting Dr. Yee s opinion that plaintiff was disabled. See 20 C.F.R. §§ 404.1527(d)(2)(i)&(ii) (stating that the length of treatment and the nature and extent of treatment affect the weight accorded to medical opinions); see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (where a treating physician s conclusions about a claimant s functional limitations are not supported by his own treatment notes, the ALJ may reject that opinion); cf. Lester, 81 F.3d at 833 (explaining that the treating physician s continuing relationship with the claimant makes him especially qualified to evaluate reports from examining doctors, to integrate the medical information they provide, and to form an overall conclusion as to functional capacities and limitations, as well as to prescribe or approve the overall course of treatment ). Moreover, although there may be no medication available for treating lymphedema (AR 114, 216), it was reasonable for the ALJ to infer that the treating physician would have prescribed pain medication had the condition been so severe as to prevent plaintiff from working. Likewise, the ALJ was not required to accept the opinion of totally disabled rendered by Dr. Yee. See 20 C.F.R. § 404.1527(e)(1) ( We are responsible for making the determination or decision about whether you meet the statutory definition of disability. ); see also Magallanes, 881 F.2d at 751 ( The treating physician s opinion is not . . . necessarily conclusive as to . . . the ultimate issue of disability. ) (citation omitted). 7 Although the ALJ suggests that he adopted a more restrictive residual functional capacity 24 assessment than that recommended by the state agency physicians because of recent medical evidence of swelling persisting in plaintiff s right upper extremity (citing a July 21, 2005 letter 25 authored by Dr. Yee), this Court notes that the second state agency physician considered the 26 contemporaneous July 26, 2005 treatment notes of Dr. Lee which likewise referred to edema and disabling lymphedema in plaintiff s right upper extremity, as well as to plaintiff s inability to 27 close her hand in a fist. (AR 19, 100, 167, 191). Accordingly, at least the second state agency 28 physicians residual functional capacity assessment is not supported by substantial evidence to the extent it fails to incorporate a push/pull limitation. 12 1 based upon his non-medical lay opinion. See 20 C.F.R. § 404.1513(a)(1) 2 (decision regarding claimant s medically determinable impairments should be 3 based upon determination made by an acceptable medical source, such as a 4 licensed physician); see also Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 5 1975) (ALJ may not make his own medical assessment beyond that demonstrated 6 by the record); see also Gonzalez Perez v. Secretary of Health & Human Services, 7 812 F.2d 747, 749 (1st Cir. 1987) (ALJ may not substitute his own layman s 8 opinion for the findings and opinion of a physician ); Jones v. Apfel, 2000 WL 9 87288 *4 (C.D. Cal. 2000) (where there is a conflict between medical opinions, 10 the ALJ may choose between those opinions but may not substitute his own lay 11 opinion for that of the medical professionals). 12 In light of (i) the ALJ s determination, based upon evidence assertedly not 13 considered by the state agency physicians, that plaintiff s condition did impact her 14 ability to function; (ii) the absence of evidence supporting the degree of 15 impairment adopted by the ALJ; and (iii) the ALJ s rejection of plaintiff s treating 16 physicians assessments regarding the degree of impairment, the ALJ should 17 reassess plaintiff s residual functional capacity. Moreover, given the foregoing, it 18 would be appropriate for the ALJ to supplement the record with an additional 19 medical opinion regarding the functional impact of plaintiff s right upper 20 extremity persistent lymphedema on, among other things, her ability to push/pull.8 21 /// 22 /// 23 24 8 Given the treating physicians asserted observations regarding plaintiff s inability to 25 close her right hand and make a fist, and the fact that at least one such opinion was not 26 considered by either state agency physician, it would also be appropriate to supplement the record with a medical opinion as to whether plaintiff has any manipulative limitations. If the 27 ALJ concludes, based upon evidence in the record, that plaintiff does have manipulative 28 limitations, the record should also be supplemented with evidence regarding the impact of such limitations on plaintiff s ability to work, inter alia, as a chef. 13 1 V. CONCLUSION9 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.10 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: November 29, 2008 7 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 The Court need not, and has not adjudicated plaintiff s other challenges to the ALJ s determination except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 10 When a court reverses an administrative determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 14

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