Sirus Shafigi v. Michael J. Astrue, No. 2:2008cv05469 - Document 20 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION; ORDER by Magistrate Judge Oswald Parada. Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion. (mrgo)
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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 SIRUS SHAFIGI, ) Case No. CV 08-5469-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed 17 18 19 20 21 22 issues listed in the Joint Stipulation ( JS ).2 /// /// /// /// 23 1 24 25 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 10, 11.) 2 As stated in the Court s Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record, and the 27 Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal 28 Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 1. Whether the Administrative Law Judge ( ALJ ) sustained his burden 6 of proof at step 5 of the sequential evaluation process, or whether the 7 ALJ properly determined that Plaintiff can engaged in other types of 8 substantial gainful work existing in the national economy; 9 2. 10 11 capacity ( RFC ) at step 4 of the sequential evaluation process; 3. 12 13 Whether the ALJ properly assessed Plaintiff s residual functional Whether the ALJ properly determined Plaintiff met Listing 3.02(C)(2); and 4. Whether the ALJ properly evaluated Plaintiff s credibility.3 14 (JS at 4.) 15 II. 16 STANDARD OF REVIEW 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 18 to determine whether the Commissioner s findings are supported by substantial 19 evidence and whether the proper legal standards were applied. DeLorme v. 20 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 21 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 22 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 23 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 24 evidence is such relevant evidence as a reasonable mind might accept as adequate 25 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 26 27 3 Plaintiff argues that the ALJ erred by rejecting Plaintiff s testimony within 28 his RFC claim. (JS at 15-16.) The Court will address the issue of Plaintiff s credibility separately. 2 1 Court must review the record as a whole and consider adverse as well as 2 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 3 Where evidence is susceptible of more than one rational interpretation, the 4 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 5 1452 (9th Cir. 1984). 6 III. 7 DISCUSSION 8 A. The ALJ Failed to Sustain His Burden of Proof at Step 5 of the 9 Sequential Evaluation. 10 Plaintiff contends that the ALJ erroneously determined that Plaintiff could 11 perform other types of substantial gainful work existing in the national economy at 12 step 5 of the sequential evaluation. (JS at 4-6.) Specifically, Plaintiff argues that 13 the occupations identified by the vocational expert ( VE ) conflict with Plaintiff s 14 limitation from performing work at or above shoulder level. (Id.) Plaintiff also 15 argues that the ALJ posed an incomplete hypothetical to the VE. (Id. at 5.) 16 1. 17 Here, the ALJ assessed Plaintiff s RFC4 as follows: 18 The claimant has the following residual functional capacity: he can 19 perform light work, or work involving lifting objects weighing up to 20 20 pounds occasionally and up to ten pounds frequently. He is further 21 limited to no more than occasional postural changes and cannot perform 22 work at or above shoulder level or engaged in heavy pushing and pulling 23 with his upper extremities. Background. 24 (Administrative Record ( AR ) at 25.) Thus, Plaintiff is able to perform a limited 25 range of light work. 26 27 4 The Court notes that Plaintiff disputes the ALJ s RFC finding. (JS at 1128 16.) The Court will discuss this contention below. See infra, Discussion Part III.B. 3 1 At the hearing, the ALJ and Plaintiff s attorney engaged in the following 2 discussion with the VE: 3 ALJ: [Assume Plaintiff to be] capable of performing light work with 4 mild pain, which would include the ability to stand or walk six hours out 5 of eight hours, sit six hours out of eight hours, and occasionally climb, 6 balance, stoop, kneel, crouch and crawl . . . . And there should be no 7 repetitive, overhead reaching or push/pull. So would there be entry 8 level work he could perform? If so, what would the number of the jobs 9 be? 10 VE: Yes, there would be jobs. And a person with that vocational 11 profile would be able to perform jobs such as ticket taker - - 211.467- 12 030 . . . SVP two, light . . . . And there s approximately . . . 4,000 jobs 13 in L.A., Orange and Riverside counties and 80,000 nationally. Could 14 work as an [sic] cashier - - 211.462-010 - - SVP two, light. 44,000 jobs 15 locally. 1,600,000 nationally. Could work as a storage facility clerk - - 16 295.367-026 - - SVP two, light. 6,700 jobs locally and 128,000 17 nationally. 18 ALJ: And how about sedentary jobs? 19 VE: Would be able to perform the full range of sedentary unskilled 20 employment. And that would include jobs such as order clerk - - 21 209.567-014 - - 2,000 - - that s an SVP two, sedentary. 2,000 jobs 22 locally. 20,000 nationally. Call out operator - - 237.637-014 - - SVP 23 two, sedentary. 1,500 locally. 14,000 nationally. . . . 24 Plaintiff s Attorney: Of the jobs that you mentioned, what are the 25 physical requirements of those jobs? 26 VE: Well, the light ones require - - really match the hypothetical - - the 27 ability to stand and walk six to eight hours of a day. Some of them 28 require occasional climbing, bending, and stooping - - some did not. 4 1 And there s no overhead reaching required. The sedentary ones are 2 sedentary - - sitting . . . six of eight hours a day, lifting no more than 10 3 pounds. 4 (Id. at 51-53.) 5 2. 6 In order for the testimony of a VE to be considered reliable, the Applicable Law. 7 hypothetical posed must include all of the claimant s functional limitations, both 8 physical and mental supported by the record. Thomas v. Barnhart, 278 F.3d 947, 9 956 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 10 1995)). Hypothetical questions posed to a VE need not include all alleged 11 limitations, but rather only those limitations which the ALJ finds to exist. See, 12 e.g., Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989); Copeland v. 13 Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. Heckler, 807 F.2d 771, 14 773-74 (9th Cir. 1986). As a result, an ALJ must propose a hypothetical that is 15 based on medical assumptions, supported by substantial evidence in the record, 16 that reflects the claimant s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 17 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 18 1995)); see also Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (although 19 the hypothetical may be based on evidence which is disputed, the assumptions in 20 the hypothetical must be supported by the record). 21 3. 22 Here, the ALJ posed a hypothetical to the VE including a limitation, inter Analysis. 23 alia, for no repetitive, overhead reaching or push/pull. (AR at 51.) In the 24 decision, the ALJ restricts Plaintiff from all work at or above shoulder level. 25 (Id. at 25.) While the hypothetical includes work above shoulder level, it fails to 26 account for work at shoulder level. As a result, the ALJ posed an incomplete 27 hypothetical to the VE. Moreover, the jobs identified by the vocational expert all 28 require frequent or occasional reaching. There is no indication whether the 5 1 reaching includes at or above shoulder level reaching. 2 Based on the foregoing, the Court finds that the ALJ committed legal error 3 by failing to pose a complete hypothetical to the VE to include a limitation for 4 work at shoulder level. The Court also finds that the ALJ failed to resolve an 5 apparent conflict between the jobs identified by the VE and the Plaintiff s RFC. 6 On remand, the ALJ will have an opportunity to address these issues again and 7 should consider these issues in determining the merits of Plaintiff s case. 8 B. The ALJ s Residual Functional Capacity Determination is Supported 9 by Substantial Evidence. 10 Plaintiff contends that the ALJ erred by failing to consider all the relevant 11 evidence in determining Plaintiff s RFC. (JS at 11-16.)5 12 1. 13 In determining a plaintiff s RFC, an ALJ must consider all relevant Applicable Law. 14 evidence in the record, including medical records, lay evidence, and the effects of 15 symptoms, including pain, that are reasonably attributed to a medically 16 determinable impairment. Robbins v. Social Security, 466 F.3d 880, 883 (9th Cir. 17 2006) (citations omitted). Careful consideration should be given to any evidence 18 about symptoms because subjective descriptions may indicate more severe 19 limitations or restrictions than can be shown by medical evidence alone. Id. 20 2. 21 As stated above, the ALJ found that Plaintiff has the RFC to perform light Analysis. 22 23 5 Plaintiff also argues that the ALJ failed to account for Plaintiff s inability 24 to stay awake in the RFC finding. (JS at 13.) Plaintiff testified he fell asleep two 25 or three times per day for thirty to forty-five minutes. (AR at 53-54.) At the hearing, the VE testified that an individual with this sleep limitation would be 26 unable to perform the jobs set forth at the hearing. (Id. at 54.) The ALJ, however, 27 did not find Plaintiff s testimony credible, and thus, the ALJ did not include this 28 limitation in the RFC finding. (Id. at 22-25); see infra, Discussion Part III.D. Thus, Plaintiff s argument is without merit. 6 1 work, limited to no more than occasional postural changes and cannot perform 2 work at or above shoulder level or engaged in heavy pushing and pulling with his 3 upper extremities. (AR at 25.) 4 Here, in determining Plaintiff s RFC, the ALJ considered all of the 5 evidence, including statements and findings of the treating and examining 6 physicians, consultative physicians, and other medical consultants. (Id. at 21-25.) 7 The Court agrees with the Commissioner that the ALJ relied upon findings from 8 medical sources, all essentially in agreement regarding Plaintiff s functional 9 limitations. (JS at 7; AR at 21-22, 269-70, 307, 310-11, 335-37, 391-443, 48310 84.) Moreover, the ALJ also found Plaintiff s allegations of total disability and 11 subjective pain symptoms not entirely credible, in support of the RFC assessment. 12 See infra, Discussion Part III.D. Based on the foregoing, the Court finds no error 13 in the ALJ s finding that Plaintiff was capable of performing a limited range of 14 light exertional work. 15 C. The ALJ Did Not Err in Finding that Plaintiff s Condition Did Not 16 Meet or Equal Any Listing. 17 Plaintiff claims that the ALJ erred by failing to determine that his 18 impairments equaled a listing. (JS at 12.) The Court disagrees. 19 1. 20 At the third step of the sequential analysis, the ALJ must determine whether Applicable Law. 21 a claimant s impairment meets or equals an impairment listed in the Listing of 22 Impairments ( Listings ). See 20 C.F.R. Part 404, Subpt. P, App. 1; see also 23 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 24 20 C.F.R. §§ 404.1520, 416.920); Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 25 Cir. 1999). The Listings set forth certain impairments which are presumed to be 26 of sufficient severity to prevent the performance of work. See C.F.R. §§ 27 404.1525(a), 416.925(a). If a claimant has an impairment which meets or equals a 28 listed impairment, disability is presumed, and benefits are awarded. See 20 C.F.R. 7 1 §§ 404.1520(d), 416.920(d); Barker v. Sec y of Health & Human Servs., 882 F.2d 2 1474, 1477 (9th Cir. 1989). An impairment meets a listed impairment if it is in 3 the Listings. See 20 C.F.R. §§ 404.1520(d), 416.920(d) 4 The claimant has the burden of proving disability, including disability based 5 on the Listing. Roberts, 66 F.3d at 182; Vick v. Comm r of Soc. Sec. Admin., 57 6 F. Supp. 2d 1077, 1087 (D. Or. 1999). The mere diagnosis of a listed condition 7 does not establish that a claimant meets the Listings. Young v. Sullivan, 911 8 F.2d 180, 183-84 (9th Cir. 1990). For a claimant to show that his impairment 9 matches a listing, it must meet all of the specified medical criteria. An impairment 10 that manifests only some of those criteria, no matter how severely, does not 11 qualify. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 12 (1990); see also 20 C.F.R. § 404.1525(d). Thus, the ALJ must find that the 13 claimant has an impairment which corresponds in diagnosis, severity, and duration 14 to a listed impairment. 15 2. 16 Here, Plaintiff contends that his medically determinable impairment met Analysis. 17 Listing 3.02(C)(2). (JS at 12.) Plaintiff identifies two instances, March 26 and 28, 18 2004, where Plaintiff s oxygen levels indicated a decrease in lung capacity and 19 met the requirements of Listing 3.02(C)(2). (Id.) On March 26, 2004, Plaintiff 20 received a Blood Gas Report, where his partial pressure of carbon dioxide 21 ( PCO2 ) measured at 38.1 mm. Hg, and his partial pressure of oxygen ( PO2 ) 22 measured at 50 mm. Hg. (AR at 254); see also 20 C.F.R. Subpt. P, App.1, 23 3.00(F)(4). On March 28, 2004, Plaintiff received another Blood Gas Report, 24 where his PCO2 measured at 48.8 mm. Hg, and his P02 measured at 46.3. (Id. at 25 252.) 26 Listing 3.02(C)(2) provides that a person meets the criteria for this section if 27 the medical evidence shows as follows: 28 Arterial blood gas values of PO2 and simultaneously determined PCO2 8 1 measured while at rest (breathing room air, awake and sitting or 2 standing) in a clinically stable condition on at least two occasions, three 3 or more weeks apart within a 6-month period, equal to or less than the 4 values specified in the applicable table III-A or III-B or III-C. 5 20 C.F.R. Subpt. P, App.1, 3.02(C)(2). 6 The tables associated with this Listing indicate that an individual, with 7 findings occurring at least two occasions, three or more weeks apart within a 68 month period would meet the requirements of Listing 3.02(C)(2) in at least these 9 two instances: (i) a PCO2 measurement of 40 mm. Hg or above with a 10 simultaneous PO2 measurement of 55 mm. Hg or less; or (ii) with a PCO2 11 measurement of 38 mm. Hg with a simultaneous PO2 measurement of 57 mm. Hg. 12 or less. Id. While Plaintiff meets the listings as to the PC02 and P02 13 measurements, Plaintiff fails to meet the duration requirement specified in the 14 Listing in that the examinations are only two days apart, rather than at least three 15 weeks apart in a six-month period. Thus, Plaintiff does not meet Listing 16 3.02(C)(2). 17 Based on the foregoing, the Court finds that the ALJ relied on substantial 18 evidence to determine that Plaintiff did not meet or equal Listing 3.02(C)(2).6 19 Thus, there was no error. 20 D. The ALJ Properly Evaluated Plaintiff s Credibility. 21 Plaintiff contends the ALJ erroneously assessed Plaintiff s credibility by 22 failing to provide clear and convincing reasons for rejecting his subjective 23 symptoms. (JS at 11-16.) The Court disagrees. 24 6 Plaintiff also argues that additional tests indicating some decrease in lung capacity, but with no reported oxygen and carbon dioxide findings, viewed in 26 conjunction with the March 26 and 28, 2004 findings, are consistent with meeting 27 Listing 3.02(C)(2). (JS at 12.) However, Plaintiff fails to provide any authority to 28 support this contention. See Roberts, 66 F.3d at 182; see also Vick, 57 F. Supp. 2d at 1087. 25 9 1 1. 2 An ALJ s credibility finding must be properly supported by the record and Applicable Law. 3 sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily 4 reject a claimant s subjective testimony. Bunnell v. Sullivan, 947 F.2d 341, 3455 47 (9th Cir. 1991). An ALJ s assessment of pain severity and claimant credibility 6 is entitled to great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 7 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an 8 ALJ s disbelief of a claimant s testimony is a critical factor in a decision to deny 9 benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 10 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 11 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit 12 finding that claimant was not credible is insufficient). 13 Under the Cotton test, where the claimant has produced objective medical 14 evidence of an impairment which could reasonably be expected to produce some 15 degree of pain and/or other symptoms, and the record is devoid of any affirmative 16 evidence of malingering, the ALJ may reject the claimant s testimony regarding 17 the severity of the claimant s pain and/or other symptoms only if the ALJ makes 18 specific findings stating clear and convincing reasons for doing so. See Cotton v. 19 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 20 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 21 Bunnell, 947 F.2d at 343. 22 To determine whether a claimant s testimony regarding the severity of his 23 symptoms is credible, the ALJ may consider, inter alia, the following evidence: 24 (1) ordinary techniques of credibility evaluation, such as the claimant s reputation 25 for lying, prior inconsistent statements concerning the symptoms, and other 26 testimony by the claimant that appears less than candid; (2) unexplained or 27 inadequately explained failure to seek treatment or to follow a prescribed course of 28 treatment; (3) the claimant s daily activities; and (4) testimony from physicians 10 1 and third parties concerning the nature, severity, and effect of the claimant s 2 symptoms. Thomas, 278 F.3d at 958-59; see also Smolen, 80 F.3d at 1284. 3 Social Security Ruling ( SSR ) 96-7p further provides factors that may be 4 considered to determine a claimant s credibility such as: 1) the individual s daily 5 activities; 2) the location, duration, frequency, and intensity of the individual s 6 pain and other symptoms; 3) factors that precipitate and aggravate the symptoms; 7 4) the type, dosage, effectiveness, and side effects of any medication the 8 individual takes or has taken to alleviate pain or other symptoms; 5) treatment, 9 other than medication, the individual receives or has received for relief of pain or 10 other symptoms; 6) any measures other than treatment the individual uses or has 11 used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing 12 for 15 to 20 minutes every hour, or sleeping on a board); and 7) any other factors 13 concerning the individual s functional limitations and restrictions due to pain or 14 other symptoms. SSR 96-7p. 15 2. 16 Plaintiff contends the ALJ failed to provide clear and convincing reasons to Analysis. 17 reject Plaintiff s subjective symptoms primarily related to sleep apnea. (JS at 1118 16.) In the decision, the ALJ stated Plaintiff received no treatment for sleep apnea 19 after 2002, and required no long-term oxygen use. (AR at 23.) Plaintiff, however, 20 argues that the record evidences several instances of treatment and disabling 21 symptoms after 2002. (JS at 11-16.) Plaintiff also argues that his blood gas 22 readings have failed to return to normal, presumably to support a disabling 23 pulmonary condition. (Id.) 24 At the hearing, Plaintiff testified, inter alia, that he suffered primarily from 25 sleep apnea, and pain in his right shoulder, back, and left thigh. (AR at 21, 41-44.) 26 In the decision, the ALJ rejected Plaintiff s testimony regarding her subjective 27 complaints for several reasons, including the following: (i) discrepancies between 28 Plaintiff s testimony and complaints to his physicians; (ii) the lack of recent or 11 1 ongoing treatment for sleep apnea; (iii) overall conservative treatment for 2 Plaintiff s disabling complaints; and (iv) other evidence related to his functional 3 limitations. (Id. at 22-23.) 4 Relying upon Plaintiff s own description of his physical limitations in his 5 disability application and throughout the record, the ALJ found Plaintiff not be a 6 credible witness and discredited the severity of his subjective complaints. (Id.) In 7 his disability application, Plaintiff stated that he is unable to bathe or put socks on 8 without assistance, unable to do chores, yard work, watch television, or drive due 9 to his injuries and inability to stand or sit for extended periods, requires a cane to 10 walk, and uses a CPAP system to sleep due to his sleep apnea. (Id. at 105-12.) 11 However, the ALJ discredited Plaintiff s complaints as follows: 12 [Plaintiff] has not been observed to use a cane in his examinations. The 13 claimant alleges a very limited lifestyle in his disability application, but 14 told his treating orthopedist that he has pain with prolonged use of his 15 upper extremities, repetitive postural changes, heavy lifting, and 16 prolonged walking and upper extremities, repetitive postural changes, 17 heavy lifting, and prolonged walking and standing. The claimant 18 described his capacity quite differently in the two settings, and this 19 inconsistency damages his credibility. 20 (Id. at 22-23 (citations omitted).) The record supports the ALJ s finding. (Id. at 21 105-12, 262); see also Thomas, 278 F.3d 958-59; Smolen, 80 F.3d at 1284; 22 23 SSR 96-7p. Next, the ALJ discounted Plaintiff s credibility by relying on the lack of 24 ongoing treatment for sleep apnea, and conservative treatment for Plaintiff s 25 conditions. (AR at 23.) The ALJ stated: 26 The claimant states that his sleep apnea is his biggest problem, 27 however, he has not seen a doctor for treatment of this problem since 28 2002. It seems reasonable that if it truly continued to be a debilitating 12 1 problem, he would have sought treatment for it within the last four 2 years . . . . 3 The claimant takes maintenance medications for his asthma, 4 allergies, diabetes, and hypertension, but does not have any medication 5 for pain or sleep. This would indicate that the claimant s levels of pain 6 and sleep are really not so very bothersome . . . . 7 The claimant has not had any referral for surgery, acupuncture, 8 chiropractic treatments, long-term oxygen use, talk therapy for sleep 9 problem, or other aggressive treatment modalities. If the claimant s 10 doctors believed the claimant to be debilitated by his problems, surely 11 they would have pursued more aggressive treatments. 12 (Id. (citations omitted).) The record supports the ALJ s finding. Contrary to 13 Plaintiff s contentions, there is no evidence of recent treatment for sleep apnea, 14 beyond the use of a CPAP machine for assistance with sleeping. (AR at 197-98, 15 350-85.) During his treatment for sleep apnea, the ALJ noted that it was 16 monitored with a CPAP machine and appeared to alleviate Plaintiff s difficulty 17 sleeping. (Id. at 197-98, 350-85, 415.) Notably, there is no medical evidence 18 suggesting that Plaintiff was functionally limited due to the severity, if any, of his 19 sleep apnea. (Id. at 268-71, 346.) There is also no evidence that Plaintiff is taking 20 any medication for his sleep apnea, such as a sleep aid. (Id. at 149.) Moreover, 21 Plaintiff only received conservative treatment for his sleep apnea and other 22 complaints, as indicated by the ALJ. (Id. at 23.) Accordingly, the ALJ properly 23 discounted Plaintiff s credibility based upon Plaintiff s overall conservative 24 treatment, and lack of ongoing treatment for sleep apnea and other subjective 25 complaints. See Thomas, 278 F.3d at 958-59; see also Smolen, 80 F.3d at 1284; 26 27 28 13 1 SSR 96-7p.7 2 Finally, the ALJ based his adverse credibility determination upon other 3 evidence in the record to concerning Plaintiff s functional limitations and 4 restrictions due to subjective symptoms. (AR at 23.) The ALJ provided: 5 The claimant stated that he recovered fully from his automobile accident 6 of December, 2004 and returned to truck driving. There has been no 7 intervening event between when he returned to work and when he quit 8 that might explain why or how his condition allegedly deteriorated. The 9 record does not reflect an increase in frequency or aggressiveness of 10 treatment from the time the claimant worked and when he alleges he 11 became disabled. 12 (Id. (citations omitted).) The record substantiates the ALJ s finding, as Plaintiff 13 stated he recovered fully after his accident, and the record does not support any 14 major physical deterioration. (AR at 104.) While Plaintiff appears to argue the 15 automobile accident was related to his sleep apnea, there is nothing in the record 16 to support this contention. Thus, the ALJ properly discounted Plaintiff s 17 credibility. SSR 96-7p. 18 Based on the foregoing, the Court finds that the ALJ provided clear and 19 convincing reasons, supported by substantial evidence, for rejecting Plaintiff s 20 testimony regarding his subjective symptoms. Thus, there was no error. 21 E. This Case Should Be Remanded for Further Administrative 22 Proceedings. 23 The law is well established that remand for further proceedings is 24 appropriate where additional proceedings could remedy defects in the 25 Commissioner s decision. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 26 27 7 Plaintiff also argues that he suffered from a pulmonary condition, which 28 equaled Listing 3.02(C)(2). (JS at 11-16.) The Court has already addressed this issue and rejected Plaintiff s contention. See supra, Discussion Part III.C. 14 1 Remand for payment of benefits is appropriate where no useful purpose would be 2 served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 3 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. 4 Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 5 unnecessarily delay the receipt of benefits. Bilby v. Schweiker, 762 F.2d 716, 719 6 (9th Cir. 1985). Here, the Court concludes that further administrative proceedings 7 would serve a useful purpose and remedy the administrative defects discussed 8 herein. 9 IV. 10 ORDER 11 Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY 12 ORDERED THAT Judgment be entered reversing the decision of the 13 Commissioner of Social Security and remanding this matter for further 14 administrative proceedings consistent with this Memorandum Opinion. 15 16 Dated: November 23, 2009 17 ______________________________ HONORABLE OSWALD PARADA United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 15
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