Jose Calderon v. Michael J. Astrue, No. 2:2007cv07312 - Document 20 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Marc L. Goldman. It is ordered that this action is remanded to defendant for further proceedings. (See Order for details) (db)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JOSE CALDERON, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. 18 19 Plaintiff Jose ) ) ) ) ) ) ) ) ) ) ) ) ) Calderon Case No. CV 07-07312-MLG MEMORANDUM OPINION AND ORDER ( Plaintiff ) seeks review of the 20 Commissioner s final decision denying his applications for Disability 21 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ). For 22 the reasons discussed below, the Commissioner s decision is reversed and 23 remanded for further proceedings. 24 25 I. Factual and Procedural Background 26 Plaintiff was born on January 24, 1965. (Administrative Record 27 ( AR ) at 23, 56, 248). He has past relevant work experience as a 28 1 janitor. (AR at 607). Plaintiff has a tenth grade education.1 (AR at 2 595). 3 Plaintiff filed applications for DIB and SSI on March 21, 1994, 4 alleging that he has been disabled and unable to work since February 19, 5 1993, due to: injuries to his right hand and back; pain and stiffness in 6 his right hand, back, left hip and left shoulder; difficulty sitting, 7 standing, walking, bending, squatting; and an inability to grip, grasp 8 or squeeze objects for a long time.2 (AR at 23, 62-67, 91, 99). Plaintiff 9 also asserts that he suffers from a mental impairment. (AR at 26). The 10 Social Security Administration denied benefits at the initial and 11 reconsideration stages of the administrative process. (AR at 68-74, 77- 12 80, 247). 13 At Plaintiff s request, an administrative hearing was held before 14 Administrative Law Judge Earl J. Waits ( ALJ Waits ). (AR at 45-61, 15 247). On May 26, 1995, ALJ Waits issued a decision ( Decision #1 ) 16 finding that Plaintiff was not under a disability, as defined in the 17 Social Security Act. (AR at 22-31); see 20 C.F.R. §§ 404.1520(e), 18 416.920(e). The Appeals Council denied review. (AR at 3-4). 19 Plaintiff commenced an action seeking review in this Court. On July 20 29, 1998, this Court remanded the case to the Commissioner for further 21 consideration of medical evidence concerning Plaintiff s right wrist 22 impairment. Calderon v. Apfel, Case No. CV 96-4891-HLH (BQR); (AR at 23 328-52). 24 // 25 26 1 Plaintiff claims he did not complete the eighth grade. (AR at 101, 270, 1041). 27 2 28 Plaintiff filed a second set of applications for DIB and SSI on March 26, 1997. (AR at 594). 2 1 A supplemental hearing was conducted, and on March 16, 2001, ALJ 2 Waits issued a decision ( Decision #2 ) denying Plaintiff s requests for 3 benefits. (AR at 247-59, 261-306). Plaintiff sought review in this 4 Court. On October 14, 2004, this Court remanded the case to the 5 Commissioner for further consideration of medical records from the 6 Hollywood Sunset Free Clinic and psychiatrist William Vicary, M.D. 7 concerning Plaintiff s alleged mental impairment. Calderon v. Barnhart, 8 Case No. CV 03-5655-MLG; (AR at 610-20). 9 On October 3, 2005, an administrative hearing was held before 10 Administrative Law Judge Alexander Weir III ( ALJ Weir ). (AR at 941- 11 1011). On January 5, 2006, ALJ Weir issued a decision ( Decision #3 ) 12 concluding that Plaintiff was not disabled. (AR at 796-816). The Appeals 13 Council disagreed with ALJ Weir and remanded Plaintiff s case for 14 further consideration of the medical evidence. (AR at 824-25). 15 A fourth administrative hearing was conducted, and on June 22, 16 2007, ALJ Weir determined that Plaintiff was not disabled ( Decision 17 #4 ). (AR at 593-608). Specifically, ALJ Weir found that Plaintiff 18 suffered from chronic neck and back strain, and that Plaintiff has a 19 history of a cartilage tear in the right wrist, but that Plaintiff s 20 impairments 21 impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 605- 22 06). While Plaintiff had been receiving treatment for anxiety and 23 depression, ALJ Weir found that Plaintiff s mental condition was under 24 good control and therefore, not a severe impairment (i.e., Plaintiff s 25 mental condition had only a mild impact on his daily living activities, 26 social functioning and ability to maintain concentration, persistence 27 and pace, and there was no evidence of any episodes of decompensation of 28 extended duration). (AR at 605). After rejecting Plaintiff s allegations did not meet or medically 3 equal one of the listed 1 regarding his limitations as not credible, ALJ Weir assessed Plaintiff 2 with the residual functional capacity for medium work (i.e., lift and 3 carry 50 pounds occasionally and 25 pounds frequently, and stand, walk 4 and sit for about six hours in an eight-hour workday). (AR at 604-07). 5 ALJ Weir concluded that Plaintiff remains capable of performing his past 6 relevant work as a janitor, as that work is generally performed in the 7 national economy. (AR at 606-08). The Appeals Council denied review and 8 Decision #4 became the final decision of the Commissioner. Plaintiff 9 then commenced this action for judicial review. 10 Plaintiff raises the following arguments: 11 1. ALJ Weir erred by disregarding the opinions of 12 Plaintiff s treating physicians. (Joint Stipulation 13 at 20-27, 39-44). 14 2. ALJ Weir erred in finding that Plaintiff s mental 15 impairment was not severe. (Joint Stipulation at 16 44-47, 49-52). 17 3. 18 ALJ Weir erred in his assessment of Plaintiff s credibility. (Joint Stipulation at 52-55, 58-59). 19 4. ALJ Weir s assessment of Plaintiff s residual 20 functional capacity is not supported by substantial 21 evidence. (Joint Stipulation at 59-64). 22 5. 23 ALJ Weir failed to properly consider Plaintiff s obesity. (Joint Stipulation at 64-67). 24 Plaintiff seeks a remand for payment of benefits. (Joint Stipulation at 25 67-68). The Commissioner requests that Decision #4 be affirmed. (AR at 26 69-70). The Joint Stipulation has been taken under submission without 27 oral argument. 28 // 4 1 II. 2 Standard of Review The Court must uphold the Social Security Administrations s 3 disability determination unless it is not supported by substantial 4 evidence or is based on legal error. Ryan v. Comm r of Soc. Sec., 528 5 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm r of Soc. Sec. 6 Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means 7 more than a scintilla, but less than a preponderance; it is evidence 8 that 9 conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 10 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 11 2006)). To determine whether substantial evidence supports a finding, 12 the reviewing court must review the administrative record as a whole, 13 weighing both the evidence that supports and the evidence that detracts 14 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 15 720 (9th Cir. 1996). If the evidence can support either affirming or 16 reversing the ALJ s conclusion, the reviewing court may not substitute 17 [its] judgment for that of the ALJ. Robbins, 466 F.3d at 882. a reasonable person might accept as adequate to support a 18 19 III. Discussion 20 A. Plaintiff s Mental Impairment 21 Plaintiff contends that ALJ Weir improperly disregarded the 22 opinions of his treating psychiatrist, William Vicary, M.D., and other 23 treating physicians at the Hollywood Sunset Community Clinic concerning 24 his mental impairment.3 25 26 27 28 3 Most of Plaintiff s mental health progress reports from the Hollywood Sunset Community Clinic bear illegible initials on the physician s signature line. (AR at 315, 318, 320-26, 696, 703, 725, 735, 746, 750, 752, 760, 767, 772, 779, 781, 875, 879, 892, 925, 928). These reports appear to have been signed by Dr. Vicary. (See AR at 876; see 5 1 Plaintiff began receiving mental health treatment at the Hollywood 2 Sunset Community Clinic in January 1997. (AR at 313, 327). Plaintiff 3 complained of hearing voices, sleep disturbance, and stress. (AR at 4 327). Dr. Vicary diagnosed Plaintiff with anxiety and depression. (AR at 5 326). 6 Dr. Vicary continued to treat Plaintiff on a regular basis over the 7 next ten years. His records suggest an increasing level of mental 8 impairment. (AR at 314-15, 318, 320-26, 696, 703, 725, 735, 750, 752, 9 760, 767, 772, 779, 781, 784-87, 874-75, 879, 892, 899, 911-14, 925, 10 928). For example, in July 2000, Dr. Vicary assessed Plaintiff s ability 11 to perform various work-related activities on a day-to-day basis as 12 fair to poor. 4 (AR at 314). 13 On September 1, 2000, and June 7, 2002, Dr. Vicary opined that 14 Plaintiff was disabled due to a generalized anxiety disorder and 15 cyclothymia.5 (AR at 556, 689). 16 In a Mental Impairment Questionnaire completed in September 2005, 17 Dr. Vicary diagnosed Plaintiff with major depression and assessed 18 Plaintiff with a Global Assessment of Functioning ( GAF ) scale of 50 19 20 21 22 23 24 25 also Joint Stipulation at 35). 4 Specifically, Dr. Vicary rated Plaintiff as poor in his ability to: deal with the public; use judgment; deal with work stresses; function independently; understand, remember, and carry out complex or detailed instructions; and relate predictably in social situations. (AR at 314). Dr. Vicary rated Plaintiff as fair in his ability to: follow work rules; relate to coworkers; interact with supervisors; function independently; understand, remember, and carry out simple instructions; maintain personal appearance; behave in an emotionally stable manner; and demonstrate reliability. Id. 26 5 27 28 Cyclothymia is a mood disorder characterized by numerous alternating short cycles of hypomanic and depressive periods with symptoms like those of manic and major depressive episodes but of lesser severity. Dorland s Illustrated Medical Dictionary 529 (29th ed. 2000). 6 1 indicating serious symptoms or serious impairment with social and 2 occupational functioning. Diagnostic and Statistical Manual of Mental 3 Disorders (4th ed.) ( DSM-IV ) at 32. (AR at 784). Dr. Vicary found that 4 Plaintiff had moderate restrictions of activities of daily living, 5 marked difficulties in maintaining social functioning, extreme 6 deficiencies of concentrations persistence or pace, and four or more 7 episodes of decompensation. (AR at 786). In support of his opinion, Dr. 8 Vicary 9 disturbance, irritability, and social withdrawal. (AR at 784). Dr. 10 Vicary also noted the presence of a variety of other symptoms (i.e., 11 anhedonia; decreased 12 impairment in 13 somatization unexplained by organic disturbance; mood disturbance; 14 pathological 15 disturbances of mood or affect; change in personality; paranoid thinking 16 or inappropriate suspiciousness; emotional withdrawal or isolation; 17 intense and unstable interpersonal relationships and impulsive and 18 damaging behavior; emotional lability; deeply ingrained, maladaptive 19 patterns 20 perception, speech or behavior; and a history of multiple physical 21 symptoms). (AR at 785). Dr. Vicary concluded that Plaintiff s prognosis 22 was poor. (AR at 784). 23 In referred of to clinical energy; impulse January 2007, feelings control; dependence; behavior; findings Dr. of or disturbance; Vicary opined as guilt generalized passivity sleep such dysphoria, or worthlessness; persistent agressivity; oddities that sleep anxiety; persistent of thought, Plaintiff s major 24 depression prevented Plaintiff from being gainfully employed. (AR at 25 899). 26 Dr. Vicary completed a second Mental Impairment Questionnaire in 27 May 2007. (AR at 911-14). As in the September 2005 questionnaire, Dr. 28 Vicary diagnosed Plaintiff with major depression. (AR at 911). In 7 1 addition to citing 2 identified, 3 experiencing tearful episodes, anxiety attacks, appetite disturbance 4 with weight change, difficulty thinking or concentrating, motor tension, 5 inflated self-esteem, unrealistic interpretation of physical signs or 6 sensations, easy distractibility, autonomic hyperactivity, and memory 7 impairment. (AR at 911-12). Dr. Vicary further noted that Plaintiff 8 suffered from reduced intellectual functioning that was related to his 9 depression, and that Plaintiff s anxiety and depression intensified his 10 physical pain. (AR at 913). Dr. Vicary concluded that Plaintiff s 11 prognosis was poor. (AR at 911). Dr. the Vicary clinical also findings reported and that symptoms Plaintiff previously had been 12 The medications that Dr. Vicary prescribed for Plaintiff s mental 13 condition also indicated a mental impairment of increasing severity. 14 Initially, Plaintiff was treated with a single antidepressant or anti- 15 anxiety medication (amitriptyline or diazepam). (AR at 323-27). In 1998, 16 Dr. Vicary modified Plaintiff s medication regimen to include both an 17 anti-anxiety medication (Buspar) and an antidepressant (amitriptyline). 18 (AR at 321). In 1999, Dr. Vicary added a medication indicated for the 19 treatment of schizophrenia (Risperdal). (AR at 315, 694). Since November 20 2004, Plaintiff has been taking a combination of three drugs: an 21 antidepressant 22 depressive disorder (Wellbutrin) and Risperdal. (AR at 779, 781, 874-75, 23 879, 884, 890, 892, 899). (Lexapro), medication for the treatment of major 24 ALJ Weir reviewed Dr. Vicary s treatment notes and his opinions as 25 to Plaintiff s mental impairment. (AR at 601-03, 807). However, ALJ Weir 26 rejected Dr. Vicary s opinion and concluded that Plaintiff did not even 27 suffer from a severe mental impairment. (AR at 603, 605). In support of 28 his decision, ALJ Weir criticized Dr. Vicary s treatment records as 8 1 sketchy and lacking in rationale. (AR at 603). He explained that Dr. 2 Vicary s records did not show that Plaintiff had the degree of mental 3 problems identified in the Mental Impairment Questionnaires. (AR at 4 603). While Dr. Vicary s opinion may not have been conclusive on the 5 ultimate issue of disability, Magallanes v. Bowen, 881 F.2d 747, 751 6 (9th Cir. 1989), it was improper for ALJ Weir to reject Dr. Vicary s 7 opinion solely due to a lack of supporting evidence. See Sprague v. 8 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (When a treating physician 9 diagnosed claimant with depression, set forth clinical observations 10 supporting the diagnosis, and prescribed psychotherapeutic drugs, ALJ 11 erred in finding claimant had not set forth sufficient evidence to 12 substantiate mental impairment). Dr. Vicary s records reveal that every 13 time he examined Plaintiff, he assessed Plaintiff s mental status and 14 evaluated Plaintiff s medications. While his notations were often brief, 15 he described his clinical findings and Plaintiff s symptoms in greater 16 detail in the Mental Impairment Questionnaires. (AR at 784-87, 911-14). 17 If ALJ Weir questioned the objective basis for Dr. Vicary s opinion, he 18 should have inquired further. See, e.g., Smolen v. Chater, 80 F.3d 1273, 19 1288 (9th Cir. 1996); see also Brown v. Heckler, 713 F.2d 441, 443 (9th 20 Cir. 1983) (ALJ s duty to fully and fairly develop the record exists 21 even when the claimant is represented by counsel). In rejecting Dr. Vicary s opinion, ALJ Weir adopted the opinions of 22 23 three examining doctors, psychologist Harrell Reznick, Ph.D., 24 psychologist David Fox, Ph.D., and psychiatrist Ernest Bagner, III, M.D. 25 (AR at 603, 605, 807, 812). These doctors, each of whom examined 26 Plaintiff on only a single occasion,6 concluded that Plaintiff did not 27 6 28 Dr. Reznick examined Plaintiff in 2000, and Dr. Fox and Dr. Bagner examined Plaintiff in 2005. (AR at 359-66, 630-36, 646-48). 9 1 suffer from a mental impairment that would preclude him from performing 2 work related activities. (AR at 367-68, 630-33, 646-47). Specifically, 3 Dr. Reznick found that Plaintiff was capable of: performing simple and 4 repetitive 5 persistence and pace over a normal work cycle; adjusting adequately to 6 minor to moderate variation in work routine; understanding, remembering 7 and 8 instructions; adhering to basic work and safety standards; and getting 9 along satisfactorily with others in the workplace, including some 10 contact with the general public. (AR at 365-66). Dr. Fox found that 11 Plaintiff had no clinical disorder and did not demonstrate impairment 12 which would preclude him, at a cognitive or emotional level, from 13 pursuing some level of productive functioning at a low normal level. 14 (AR at 648). Dr. Bagner diagnosed Plaintiff with depressive disorder, 15 NOS in remission and rule out anti-social personality disorder. (AR at 16 632). He opined that Plaintiff would have no limitations completing 17 simple 18 interruption, maintaining concentration and attention, interacting with 19 supervisors, peers and the public, or handling normal stresses at work. 20 (AR at 633). Plaintiff contends, and the Court agrees, that these 21 examining doctors opinions were not a valid basis for rejecting Dr. 22 Vicary s opinion. tasks carrying or out complex with all minimal simple tasks, supervision and most completing a and with moderately normal appropriate complex work week verbal without 23 A treating physician s opinion must be given controlling weight if 24 it is well-supported and not inconsistent with the other substantial 25 evidence in the record. Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 26 2007); 20 C.F.R. § 404.1527(d)(2). The ALJ may not reject the opinion of 27 a treating physician, even if it is contradicted by the opinion of 28 another doctor, without first providing specific and legitimate reasons 10 1 supported by substantial evidence in the record. Lester v. Chater, 81 2 F.3d 821, 830-31 (9th Cir. 1996); Rollins v. Massanari, 261 F.3d 853, 3 856 (9th Cir. 2001); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 4 1983) ( if the ALJ wishes to disregard the opinion of the treating 5 physician, 6 legitimate reasons for doing so that are based on substantial evidence 7 in 8 substantial evidence if the physician relied on independent clinical 9 findings that differ from the findings of the treating physician. Orn, 10 495 F.3d at 631-32. Even if there is substantial evidence in the record 11 contradicting a treating physician s opinion, the opinion is still 12 entitled to deference and must be weighed using the following factors: 13 [l]ength 14 examination by the treating physician; and the nature and extent of 15 the 16 physician. 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii); 17 Orn, 495 F.3d at 631-33. Other factors to be considered include the 18 supportablility of the treating physician s opinion, consistency with 19 the record as a whole, the specialization of the physician, and the 20 extent to which the physician is familiar with disability programs and 21 evidentiary 22 416.927(d)(3)-(6). Thus, [i]n many cases, a treating source s medical 23 opinion will be entitled to the greatest weight and should be adopted, 24 even if it does not meet the test for controlling weight. S.S.R. 96-2p; 25 Orn, 495 F.3d at 632-633. the he or record ). of treatment the she must An make findings examining treatment relationship requirements. setting physician s relationship between 20 the C.F.R. opinion and patient §§ forth the and specific, constitutes frequency the of treating 404.1527(d)(3)-(6), 26 Here, while the opinions of Dr. Reznick, Dr. Fox and Dr. Bagner 27 constitute substantial evidence, Dr. Vicary s opinion was still entitled 28 to deference. SSR 96-2p; Orn, 495 F.3d at 632-633. Indeed, the factors 11 1 identified in the regulations weigh in favor of Dr. Vicary s opinion. 20 2 C.F.R. §§ 404.1527, 416.927. For example, the nature and extent of 3 Plaintiff s relationship with Dr. Vicary provides a unique longitudinal 4 perspective on Plaintiff s mental condition, adding weight to Dr. 5 Vicary s 6 416.927(d)(2)(i)-(ii); Orn, 495 F.3d at 633. As discussed above, the 7 lengthy administrative record contains countless medical forms and 8 progress reports completed by Dr. Vicary over a 10 year period. Dr. 9 Vicary offered diagnoses of Plaintiff s mental condition, made clinical 10 findings, assessed Plaintiff s ability to work, and prescribed a variety 11 of medications. While Dr. Vicary s progress notes do not reveal detailed 12 discussions regarding Plaintiff s mental condition, [t]he primary 13 function 14 recordkeeping for health care personnel - not to provide evidence for 15 disability determinations. Orn, 495 F.3d at 634. And, Dr. Vicary did 16 provide a more reasoned explanation for his opinion in the Mental 17 Impairment Questionnaires by referring to Plaintiff s symptoms, signs, 18 and prognosis. (AR at 784-87, 911-14); see 20 C.F.R. §§ 404.1527(d)(3) 19 ( Supportability. The more a medical source presents relevant evidence 20 to 21 findings, the more wweight we will give that opinion. ), 416.927(d)(3) 22 (same); see also Orn, 495 F.3d at 634 ( a medical condition [need not] 23 be mentioned in every report to conclude that a physician s opinion is 24 supported by the record ). Thus, when viewed in its entirety, the record 25 provides ample support for Dr. Vicary s opinion. opinion. of support medical an See 20 records opinion, C.F.R. is §§ to particularly 404.1527(d)(2)(i)-(ii), promote medical communication signs and and laboratory 26 ALJ Weir s finding at step two of the sequential analysis is also 27 not supported by substantial evidence. In concluding that Plaintiff does 28 not suffer from a severe mental impairment, ALJ Weir listed two reasons 12 1 in addition to his reliance on the examining doctors opinions. (AR at 2 605). 3 Plaintiff s mental impairment because he received fairly irregular 4 treatment and had not visited the emergency room with mental complaints. 5 (AR at 605, 807). As the record reflects, however, Plaintiff was treated 6 by Dr. Vicary on numerous occasions over a ten year period. (AR at 315, 7 318, 320-26, 696, 703, 725, 735, 746, 750, 752, 760, 767, 772, 779, 781, 8 875, 879, 892, 925, 928). And, claimants are not required to seek 9 psychiatric treatment in order to establish a mental illness. See Nguyen 10 v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) ( it is a questionable 11 practice to chastise one with a mental impairment for the exercise of 12 poor judgment in seeking rehabilitation ); see also Fair v. Bowen, 885 13 F.2d 597, 604 (9th Cir. 1989) (explaining that a failure to seek 14 treatment should not be used as a basis for rejecting a physician s 15 opinion). Thus, ALJ Weir s finding that Plaintiff does not suffer from 16 a severe mental impairment is not supported by substantial evidence.7 17 Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994) (an impairment 18 should be found to be non-severe only when the evidence establishes 19 merely a slight abnormality, with no more than minimal effect on ability 20 to work) (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) 21 (citing Social Security Ruling 85-28 (1985)); Smolen, 80 F.3d at 1290 22 ( the step two inquiry is a de minimis screening device to dispose of Neither of these reasons were proper. ALJ Weir discounted 23 24 25 26 27 28 7 Although this Court previously determined that ALJ Waits Decision #1 finding that Plaintiff did not suffer from a severe mental impairment was supported by substantial evidence, the evidence from Dr. Vicary and the Hollywood Sunset Community Clinic pertained to treatment received after Decision #1 was issued. (AR at 22-31, 350). 13 1 groundless claims ) (citations omitted).8 2 3 IV. Conclusion 4 The decision whether to remand for further proceedings is within 5 this Court s discretion. See Connett v. Barnhart, 340 F.3d 871, 876 (9th 6 Cir. 2003); Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). 7 Where no useful purpose would be served by further administrative 8 proceedings, or where the record has been fully developed, it is 9 appropriate to exercise this discretion to direct an immediate award of 10 benefits. Harman, 211 F.3d at 1179 ( the decision of whether to remand 11 for 12 proceedings ). However, where there are outstanding issues that must be 13 resolved before a determination of disability can be made, and it is not 14 clear from the record that the ALJ would be required to find the 15 claimant disabled if all the evidence were properly evaluated, remand is 16 appropriate. Id.; Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 17 2003). further proceedings turns upon the likely utility of such 18 Here, there are outstanding issues that must be resolved before a 19 determination of disability can be made. See, e.g. Bunnell, 336 F.3d at 20 1115-16 (remanding for reconsideration where, inter alia, ALJ failed to 21 provide adequate reasons for rejecting the opinion of the treating 22 physicians and did not properly reject [the claimant s] subjective 23 24 25 26 27 28 8 As noted above, Plaintiff raises several other challenges to Decision #4 in the Joint Stipulation. As the issue of Plaintiff s mental impairment requires further consideration on remand, and the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not decide whether the remaining issues raised by Plaintiff would independently require reversal. However, the Court recommends that, on remand, the Commissioner consider all of Plaintiff s arguments when determining the merits of his case. 14 1 complaints ). As ALJ Weir failed to adequately evaluate Dr. Vicary s 2 opinion and the severity of Plaintiff s mental condition, issues remain 3 as to Plaintiff s ability to perform his past work or other work that 4 exists in significant numbers in the economy. Thus, the Court cannot 5 find that the record has been fully developed or that further 6 administrative proceedings would serve no useful purpose. See Smolen, 7 80 F.3d at 1292. Consequently, the Court will not grant Plaintiff s 8 request to remand the action for calculation of benefits. Instead the 9 Court finds that further administrative proceedings is necessary. 10 11 ORDER 12 IT IS HEREBY ORDERED that this action is REMANDED to defendant, 13 pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings 14 as described above. 15 Dated: 16 17 18 19 20 21 22 23 24 25 26 27 28 September 18, 2008 ______________________________ Marc L. Goldman United States Magistrate Judge

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