Bobby McGee v. Michael J. Astrue, No. 2:2008cv05628 - Document 19 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agencys decision is reversed and the case is remanded for further proceedings consistent with this Opinion. (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 BOBBY McGEE, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-5628 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying his application 20 for Supplemental Security Income ( SSI ) benefits. 21 that the ALJ erred in 1) finding that his mental impairment did not 22 meet or equal a Listed impairment; 2) failing to properly evaluate his 23 credibility; and 3) determining his residual functional capacity. 24 (Joint Stip. at 2.) 25 not disabled is not supported by substantial evidence, it is reversed 26 and the case is remanded for further proceedings. 27 28 Plaintiff claims Because the Agency s decision that Plaintiff was 1 II. BACKGROUND 2 Plaintiff applied for SSI on August 31, 2005. (Administrative 3 Record ( AR ) 41.) He claimed that he was disabled due to dyslexia, 4 hip/ankle replacements, and mental/illiterate. 5 Agency denied the applications initially and on reconsideration. 6 43, 49, 50.) 7 before an Administrative Law Judge ( ALJ ). 8 22, 2007, Plaintiff appeared with counsel and testified at the 9 hearing. (AR 133.) The (AR Plaintiff then requested and was granted a hearing (AR 239-67.) (AR 32, 42.) On October On November 2, 2007, the ALJ issued a decision 10 denying the application. (AR 14-23.) The ALJ determined that 11 Plaintiff could perform sedentary work with some limitations. 12 23.) 13 showing that he had been in special education classes in middle 14 school, but the Appeals Council denied his request for review. 15 7.) (AR 19, Plaintiff appealed the ALJ s decision, submitting school records (AR 5- Thereafter, he commenced this action. 16 III. ANALYSIS 17 A. Listing 12.05 18 In his first claim of error, Plaintiff contends that the ALJ 19 erred by failing to find that he meets or equals Listing 12.05, 20 Mental Retardation, based on the results of IQ tests administered by 21 consulting psychologist Michael Musacco.1 (Joint Stip. at 2-5.) The 22 23 24 25 26 27 28 1 Listing 12.05 provides, Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05. Plaintiff contends that he meets the requirements of subsections (B) and (C) of the Listing. (Joint Stip. at 3.) Subsection 12.05(B) requires a showing of [a] valid verbal, performance, or full scale IQ of 59 or less. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05(B). Subsection 12.05(C) is satisfied if there 2 1 ALJ dismissed these results because he found that Dr. Musacco found 2 that Plaintiff was malingering and, therefore, the test results were 3 invalid. 4 was malingering were equivocal at best, noting that the doctor opined, 5 on the one hand, that Plaintiff might not have given his best effort 6 during the testing and, on the other hand, that he suffers from a 7 genuine impairment in his functioning. 8 Plaintiff also points out that Dr. Musacco recommended that other 9 records be obtained to confirm or rule out his suspicion that Plaintiff argues that Dr. Musacco s findings that Plaintiff (Joint Stip. at 3.) 10 Plaintiff was malingering and argues that the ALJ s failure to obtain 11 these records amounted to error. 12 following reasons, the Court finds that further development of the 13 record is warranted on this issue. (Joint Stip. at 3-4.) For the When Dr. Musacco evaluated Plaintiff in March 2006, Plaintiff 14 15 reported that he was illiterate and suffered from depression. 16 210.) 17 emotionally and behaviorally disturbed children, had dropped out of 18 school in the ninth grade, and was suspended all the time. 19 211.) 20 conceded that he used marijuana daily and contended that he did so to 21 cope with pain from injuries he sustained in a motorcycle accident 22 years earlier. 23 24 (AR Plaintiff told Dr. Musacco that he had attended a school for He denied any history of mental health treatment. (AR Plaintiff (AR 211.) Plaintiff claimed during his examination that he was unable to correctly identify the date, month, or year, or the colors of the 25 26 27 28 is [a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05(C). 3 1 American flag, but could name the President. (AR 211-12.) Dr. 2 Musacco and his assistant then administered a number of tests in an 3 effort to determine Plaintiff s cognitive functioning. 4 tests was the Rey 15-item Memory Test, which is designed to screen out 5 malingerers. 6 Musacco interpreted as support[ing] a concern for malingering or 7 intentional poor effort. 8 Trails B test, the results of which suggested gross deficits in 9 cognitive functioning. One of the Plaintiff failed the test on two tries, which Dr. (AR 212.) (AR 213.) Plaintiff was also given a Here, again, however, Dr. Musacco 10 noted that concerns for malingering prevent[] me from determining 11 whether these test results are valid. 12 an IQ test and scored 54 on the verbal portion, 65 on the performance 13 portion, and 55 on the full scale portion. 14 once again opined that these test results should be interpreted with 15 caution as I am uncertain whether [Plaintiff] performed to the best of 16 his ability. 17 Plaintiff s scores on the Wechsler Memory Scale fell in the 18 significantly impaired range[,] revealing pervasive deficits in his 19 memory skills, but he was uncertain whether the test results were 20 valid. 21 Malingering, Cannabis Dependence, and Depressive Disorder, not 22 otherwise specified. 23 Retardation versus Borderline Intellectual Functioning, stating that 24 the current test results underestimate[] [Plaintiff] s functioning, 25 although it is possible that he still suffers from a significant or 26 borderline impairment in his intellectual functioning. 27 concluded that Plaintiff s daily activities and social functioning 28 were significantly impaired, but stated that he was not able to (AR 213.) (AR 214.) (AR 213.) Plaintiff was given (AR 213.) Dr. Musacco Similarly, Dr. Musacco concluded that Ultimately, Dr. Musacco diagnosed Rule Out (AR 214.) He also diagnosed Mild Mental 4 (AR 214.) He 1 offer a strong opinion regarding his mental capacity. (AR 215.) Dr. 2 Musacco noted that, [d]ue to validity concerns, I would likely 3 recommend that collateral records be obtained (if possible) in order 4 to confirm or rule out the diagnostic conclusions reached in my 5 evaluation. (AR 215.) 6 Based on Dr. Musacco s diagnoses, the ALJ found that Plaintiff s 7 borderline intellectual functioning was a severe impairment but did 8 not meet or equal a Listed impairment. 9 Plaintiff s test results were invalid and that [n]o work-related (AR 19, 21.) He found that 10 psychological impairments were suggested, in Dr. Musacco s report. 11 (AR 21.) 12 impairments corresponding to his diagnoses, so the ALJ determined on 13 his own that Plaintiff s borderline intellectual functioning caused 14 mild to moderate impairments in capacities to understand and remember 15 instructions, sustain concentration and persistence, socially interact 16 with the general public, and adapt to workplace changes. 17 The ALJ noted that Dr. Musacco failed to assess functional (AR 19.) Plaintiff argues that the ALJ erred by failing to note the IQ 18 scores derived from Dr. Musacco s testing and analyze them under 19 Listing 12.05. 20 the ALJ found that the scores were invalid, he was not required to 21 discuss the test scores or the Listing requirements in any detail. 22 See, e.g., Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 23 1990) (holding that the Agency s failure to discuss why claimant did 24 not satisfy the Listed impairments did not compel reversal where it 25 set forth an adequate statement of the foundations on which the 26 ultimate factual conclusions are based. ). 27 below, the Court finds that the ALJ erred in not further developing (Joint Stip. at 3.) 28 5 The Agency counters that, because For the reasons explained 1 the record relating to whether Plaintiff was malingering during Dr. 2 Musacco s testing and remand is warranted on this issue. 3 An ALJ has a special duty to fully and fairly develop the record 4 and to assure that the claimant's interests are considered, even when 5 the claimant is represented by counsel. 6 1273, 1288 (9th Cir. 1996) (citation omitted). 7 heightened where the claimant may have a mental impairment. 8 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 9 duty to supplement a claimant s record is triggered by ambiguous Smolen v. Chater, 80 F.3d That duty is further The ALJ s 10 evidence, the ALJ s own finding that the record is inadequate or the 11 ALJ s reliance on an expert s conclusion that the evidence is 12 ambiguous. 13 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The findings contained in Dr. Musacco s report were ambiguous. 14 This is particularly true with regard to his finding regarding 15 Plaintiff s suspected malingering. 16 that Plaintiff was malingering and recommended that the record be 17 developed further to resolve his concerns. 18 out: 19 1. Dr. Musacco noted his suspicion For example, he pointed While it appears that [Plaintiff] suffers from a legitimate 20 impairment in his functioning, it also appears that he was 21 not fully cooperative with the testing procedures. 22 210.) 23 2. (AR [Plaintiff] did not appear to be cooperative insofar as he 24 failed the malingering screening test and appeared to 25 perform at a level beneath his abilities. 26 claimant s failure to provide basic information is 27 exemplified by his inability (or refusal) to correctly 28 identify the colors in the American flag. 6 An example of the (AR 212.) 1 3. [Plaintiff] failed this brief [Rey 15-Item] malingering 2 test. 3 malingering or intentional poor effort. 4 4. . . . These test results support a concern for (AR 212.) These [Trailsmaking] test results suggest gross deficits in 5 [Plaintiff s] cognitive functioning, although the concerns 6 for malingering prevent[] me from determining whether these 7 test results are valid. 8 9 10 11 5. (AR 213.) [T]hese [IQ] test results should be interpreted with caution as I am uncertain whether [Plaintiff] performed to the best of his ability. (AR 213.) Dr. Musacco explained his findings as follows: 12 I offered the Rule Out diagnosis of Malingering to account 13 for [Plaintiff s] performance on the malingering screening 14 test and other psychological test administered in the 15 current evaluation. 16 [Plaintiff] was providing a genuine effort. 17 pass the malingering screening test (which was administered 18 twice) is not believable. 19 [Plaintiff] suffers from a genuine impairment in his 20 functioning as noted by the other diagnostic 21 recommendations. 22 . . . 23 [Plaintiff s] daily activities and social functioning are 24 significantly impaired. 25 activities. 26 revolve around his medical problems. 27 . . . At times, it did not appear that His failure to However, I also suspect that He does not engage in productive It appears [Plaintiff s] primary limitations 28 7 1 I am not able to offer a stronger opinion regarding 2 [Plaintiff s] mental capacity as I suspect that [he] did not 3 perform to the best of his ability during the current 4 evaluation. 5 . . . 6 Due to validity concerns, I would likely recommend that 7 collateral records be obtained (if possible), in order to 8 confirm or rule out the diagnostic conclusions reached in my 9 evaluation. It should be noted that [Plaintiff] was 10 repeatedly instructed to perform to the best of his ability, 11 although it does not appear that this occurred. 12 13 (AR 214-15.) Thus, Dr. Musacco did not determine that Plaintiff was 14 malingering and that the test results were invalid. 15 hand, did he determine that Plaintiff was not malingering and that the 16 test results were valid. 17 malingering and recommended that the record be developed to confirm 18 his suspicions. 19 merely concluded that Plaintiff was malingering and that the test 20 scores were invalid. 21 entitled to determine that Plaintiff was malingering based on Dr. 22 Musacco s suspicions that he was where, as here, the evidence was 23 ambiguous and even Dr. Musacco did not reach that conclusion. 24 Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006) (holding that 25 ALJ failed to properly develop record where he never sought 26 additional evidence to fill [a] perceived gap ); see also Reddick v. 27 Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (ALJ erred in developing Nor, on the other He strongly suspected that Plaintiff was But the ALJ did not develop the record. (AR 21.) This was in error. 28 8 Instead, he The ALJ was not See 1 evidentiary basis by not fully accounting for the context of 2 materials and all parts of reports). 3 On remand, the ALJ should obtain a definitive answer to the 4 question of whether Plaintiff was malingering on the IQ tests and then 5 proceed accordingly. 6 Plaintiff was malingering and the test results are invalid, then the 7 ALJ need not consider them (though it would be helpful if he listed 8 the results and explained that they are not being considered because 9 they are not valid). If Dr. Musacco is willing to state that If, on the other hand, Dr. Musacco is unwilling 10 or unable to definitively state that Plaintiff was malingering and the 11 test scores are invalid, then the ALJ will be required to either 12 consider them or send Plaintiff back to Dr. Musacco or to another 13 doctor to conduct similar IQ and malingering testing.2 14 B. The Credibility Determination 15 The ALJ determined that Plaintiff was not credible because: 16 1) his treatment was not consistent with his complaints of disabling 17 pain and mental impairment, 2) his failure to work during the previous 18 15 years suggested that his testimony was tainted by a desire to 19 obtain benefits in lieu of working, and 3) his claims of illiteracy 20 were undercut by Dr. Musacco s finding of malingering and by the fact 21 that Plaintiff had completed the eighth grade and had stated in his 22 23 24 25 26 27 28 2 The Court has not overlooked the significance of the fact that Dr. Musacco administered the Rey 15-Item Memory Test and determined that Plaintiff failed this brief malingering screening inventory. (AR 212.) It seems reasonable to conclude, based on this finding, that Plaintiff was malingering throughout the testing with Dr. Musacco. But Dr. Musacco deliberately, it seems, failed to reach this conclusion and, instead, left the question open. (AR 212-15.) The ALJ was not authorized to find that Plaintiff was malingering when the doctor who administered the tests himself refused to make that finding. 9 1 application that he could read and write. 2 contends that this finding was in error. 3 (AR 21-22.) Plaintiff the following reasons, the Court agrees. (Joint Stip. at 10-12.) For 4 ALJ s are tasked with judging the credibility of witnesses. In 5 making a credibility determination, an ALJ may take into account 6 ordinary credibility evaluation techniques. 7 When a claimant has produced objective medical evidence of an 8 impairment which could reasonably be expected to produce the symptoms 9 alleged and there is no evidence of malingering, the ALJ can only Smolen, 80 F.3d at 1284. 10 reject the claimant s testimony for specific, clear, and convincing 11 reasons. 12 ALJ may take into account, among other things, ordinary credibility 13 evaluation techniques and the claimant s daily activities. 14 1284.3 15 Id. at 1283-84. In making a credibility determination, the Id. at The first reason provided by the ALJ to discount Plaintiff s 16 testimony was the fact that, in the ALJ s view, Plaintiff s complaints 17 of disabling pain were not consistent with the treatment that he had 18 received to address that pain. 19 treatment record from January 6, 2007, to find that Plaintiff takes 20 no prescription medications, including no prescription pain 21 medications[.] 22 for discounting a claimant s subjective symptom testimony, see, e.g., 23 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. (AR 20, 229.) (AR 21.) The ALJ relied on a Though this can be a legitimate reason 24 25 26 27 28 3 The ALJ did not rely on Dr. Musacco s ambiguous findings regarding malingering in establishing the framework in which to address the credibility issue. For that reason, the Court reviews the ALJ s finding under the general standard of review set forth in Smolen, i.e., that there must be specific, clear, and convincing reasons supporting the credibility finding. 10 1 2008) (noting that a conservative course of treatment can undermine 2 allegations of debilitating pain ), the overall record does not 3 support the ALJ s finding. 4 often complained of pain and received prescriptions for narcotic pain 5 relievers in response. 6 complained to his doctor that the Tylenol No. 3 and Motrin that he had 7 been prescribed did not relieve his pain and he requested stronger 8 medication, which he got. 9 he complained repeatedly of chronic hip and leg pain, and was Other treatment notes show that Plaintiff For example, in August 2001, Plaintiff (AR 194.) From at least 2002 through 2007, 10 prescribed Vicodin, Naproxen or Naprosyn, and Flexeril.4 11 197, 198, 203, 204, 205, 229, 231.) 12 referral for physical therapy was denied in July 2001 on the ground 13 that Plaintiff had too many chronic problems. 14 (AR 196, The record also shows that a (AR 193.) The ALJ s reliance on the single entry from January 2007 to find 15 that Plaintiff did not take prescription pain medication and, 16 therefore, was not in as much pain as he claimed was an impermissibly 17 selective interpretation of the record and cannot serve as substantial 18 evidence to support his credibility determination. 19 Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ( [A] reviewing 20 court must consider the entire record as a whole and may not affirm 21 simply by isolating a specific quantum of supporting evidence. ) See Robbins v. 22 23 24 25 4 26 27 28 Vicodin is used to relieve moderate to severe pain, at www.drugs.com/vicodin.html. Naproxen is used for the management of mild to moderate pain, fever, and inflammation, at www.medicinenet.com/naproxen/article.htm. Flexeril is a prescription muscle relaxant, at www.drugs.com/pdr/flexeril.html. 11 1 (quotation omitted). 2 of Plaintiff s treatment and determine if it supports his claims.5 3 On remand, the ALJ should address the totality The ALJ also relied on the lack of mental health treatment for 4 finding that Plaintiff s claim of a mental impairment was exaggerated. 5 (AR 21.) 6 finding that Plaintiff was not credible. 7 claimant was alleging that he suffered from anxiety, depression, or 8 insomnia, conditions which a mental health care professional could, 9 presumably, address with therapy, medication, and treatment. The Court does not agree that this is a legitimate basis for This is not a case where the 10 Plaintiff s alleged impairment is a cognitive deficit. 11 his IQ is well below normal and he is unable to work as a result. 12 ALJ did not explain what mental health treatment Plaintiff should have 13 obtained to correct this deficit. 14 mental health treatment programs that can help a person overcome this 15 alleged condition. 16 education classes to improve his reading and writing ability so that 17 he could maintain a job, or vocational classes to learn job skills. 18 But the Court would not consider these types of classes mental health 19 treatment in the traditional sense. 20 treatment Plaintiff was supposed to pursue to overcome his alleged 21 learning disability, the Court rejects this reason for questioning 22 Plaintiff s credibility. 23 He claims that The Nor is the Court aware of any Perhaps, Plaintiff could have enrolled in special Absent any explanation as to what The ALJ also found that Plaintiff was not believable because he 24 had not worked in 15 years, which suggested to the ALJ that he was 25 pursuing disability for financial reasons. (AR 22.) Though the ALJ 26 27 28 5 The Court notes also that the ALJ did not consider Plaintiff s statement to Dr. Musacco that he regularly used marijuana to deal with his physical pain. (AR 211.) On remand, the ALJ should do so. 12 1 was entitled to take into account Plaintiff s poor work history in 2 assessing his credibility, see, e.g., Smolen, 80 F.3d at 1284, he 3 failed to address Plaintiff s and his wife s testimony that he had 4 attempted to get work a bunch of times through an agency but was 5 repeatedly let go because he could not read and write. 6 258.) 7 for Plaintiff s lack of work and should have been discussed by the ALJ 8 when he found that Plaintiff was not credible because he had not 9 worked in 15 years. 10 (AR 243, 244, This explanation -assuming it was believed--provided some basis Finally, the ALJ rejected Plaintiff s testimony because he had 11 been malingering during psychological testing, had completed the 12 eighth grade, and had stated in his disability application that he 13 could read English and write more than his own name. 14 discussed above, the evidence of Plaintiff s malingering is 15 inconclusive. 16 clear what type of school Plaintiff had attended, (AR 133, 138, 211, 17 243), thereafter, Plaintiff submitted his school transcripts, which 18 showed that he had been enrolled in special education classes in 7th, 19 8th, and 9th grades and that he did not do very well in school, 20 earning mostly Cs and Ds. 21 in the application that he could write more than his name and could 22 read in English, the Court is not convinced that this establishes 23 mental functioning beyond Plaintiff s claimed abilities. 24 the ALJ should reconsider all three reasons for rejecting Plaintiff s 25 credibility. 26 C. 27 In his third claim of error, Plaintiff contends that the ALJ 28 (AR 22.) As And, though when the ALJ made his decision it was not (AR 233-34.) As to Plaintiff s concession On remand, The Residual Functional Capacity Determination erred in determining his residual functional capacity. 13 (Joint Stip. 1 at 16-18.) Plaintiff challenges the ALJ s determination in three 2 respects. 3 and walk for no more than two hours in an eight-hour workday is 4 inconsistent with treating doctor Markley s opinion that Plaintiff is 5 unable to stand and walk for long periods of time due to his hip 6 replacement and ankle surgery. 7 argues that the ALJ erred by not including his need to use a cane or 8 walker. 9 mental restrictions found by the ALJ are not based on any medical First, he argues that the ALJ s finding that he could stand (Joint Stip. at 16.) (Joint Stip. at 16.) Second, he And third, Plaintiff argues that the 10 opinion. 11 rejects Plaintiff s first two arguments but accepts the third. 12 (Joint Stip. at 17.) For the following reasons, the Court The governing regulations provide that the responsibility for 13 deciding a claimant s residual functional capacity is reserved to the 14 Agency. 15 functional capacity assessment] that fails to take into account a 16 claimant s limitations is defective. 17 Admin., 574 F.3d 685, 690 (9th Cir. 2009). 18 20 C.F.R. ยง 404.927(e)(2). Nevertheless, a [residual Valentine v. Comm r, Soc. Sec. As Plaintiff himself acknowledges, Dr. Markley did not specify 19 the length of time he could stand; he merely indicated on a form 20 completed on October 12, 2005, that Plaintiff was unable to 21 stand/walk [for] long periods. 22 orthopedist Juliane Tran determined after an examination on February 23 27, 2006, that Plaintiff could stand up to four hours a day, 24 increasing to six hours a day when using an assistive device. 25 221.) 26 limitation instead of Dr. Tran s, finding that Plaintiff could stand 27 or walk no more than two hours a day, instead of up to four. 28 Though the two-hour stand/walk limitation was not based expressly on (AR 180.) By contrast, consultative (AR In his decision, the ALJ accepted Dr. Markley s walking 14 (AR 21.) 1 Dr. Markley s opinion, it was not inconsistent with it either, and 2 Plaintiff has not shown why it was unreasonable for the ALJ to 3 interpret Markley s opinion in that way. 4 As to Plaintiff s need for an assistive device, the ALJ 5 reasonably interpreted the treating and examining physicians opinions 6 as setting forth the amount of time Plaintiff could stand or walk 7 unassisted by a cane or other device. 8 based her stand/walk limitation on Plaintiff s use of a cane. 9 221.) Indeed, Dr. Tran explicitly (AR Though Dr. Markley did not mention the use of a cane in her 10 form evaluation, once again, Plaintiff has failed to show that the 11 ALJ s interpretation of her opinion was unreasonable. 12 Chater, 93 F.3d 540, 544 (9th Cir. 1996) (noting that the ALJ is 13 entitled to draw inferences logically flowing from the evidence. ) 14 (quotation omitted). 15 See Macri v. Finally, as to the ALJ s findings regarding Plaintiff s mental 16 limitations, the Court agrees that they are not supported by 17 substantial evidence in the record. 18 Plaintiff s daily activities and social functioning are significantly 19 impaired but suspect[ed] that he is able to understand and carry out 20 simple tasks. 21 authorized to ensure that Plaintiff s funds were adequately managed. 22 (AR 215.) 23 was carried out. 24 (AR 215.) Dr. Musacco opined that Dr. Musacco recommended that a payee be No other mental residual functional capacity determination Because it is not clear what evidence the ALJ relied on to 25 determine that Plaintiff s mental impairment resulted in mild to 26 moderate impairments in capacities to understand and remember 27 instructions, sustain concentration and persistence, socially interact 28 with the general public, and adapt to workplace changes, (AR 21), his 15 1 residual functional capacity determination is not substantially 2 supported in this respect. 3 limitations imposed by Plaintiff s mental impairment and set forth 4 what opinions he is relying on in reaching his conclusions. On remand, the ALJ should reconsider the 5 For the reasons set forth above, the Agency s decision is 6 reversed and the case is remanded for further proceedings consistent 7 with this Opinion. 8 IT IS SO ORDERED. 9 DATED: November 9, 2009. 10 11 12 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\MCGEE, B 5628\Memo_Opinion.wpd 16
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