Valerie Ledesma v. Michael J. Astrue, No. 2:2010cv01712 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. (mz)
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Valerie Ledesma v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 VALERIE LEDESMA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-01712-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 12, 2010, seeking review of 19 the denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ), and social security income ( SSI ). 22 2010, the parties consented to proceed before the undersigned United 23 States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). 24 filed a Joint Stipulation on November 29, 2010, in which: 25 seeks an order reversing the Commissioner s decision and remanding this 26 case 27 administrative 28 Commissioner s decision be affirmed. for the payment of benefits proceedings; and or, alternatively, defendant requests On April 12, The parties plaintiff for further that the The Court has taken the parties Dockets.Justia.com 1 Joint Stipulation under submission without oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 Plaintiff filed an application for a period of disability, DIB, and 6 SSI. (Administrative Record ( A.R. ) 115-16.) Plaintiff claims to have 7 been disabled since March 26, 2008, due to manic depression and chronic 8 lumbar spine damage. 9 work experience as a housekeeping cleaner and material handler.1 10 (A.R. 77, 127, 131.) Plaintiff has past relevant (A.R. 18.) 11 12 After the Commissioner denied plaintiff s claim initially (A.R. 77- 13 81), plaintiff requested a hearing (A.R. 84-85). 14 plaintiff, who was represented by counsel, appeared and testified at a 15 hearing before Administrative Law Judge Robert S. Eisman (the ALJ ). 16 (A.R. 26-72.) 17 58-69.) 18 20), and the Appeals Council subsequently denied plaintiff s request for 19 review of the ALJ s decision (A.R. 1-3). 20 in this action On July 9, 2009, Vocational expert Freeman Leeth also testified. (A.R. On August 7, 2009, the ALJ denied plaintiff s claim (A.R. 13- That decision is now at issue 21 22 SUMMARY OF ADMINISTRATIVE DECISION 23 24 The ALJ found that plaintiff has not engaged in substantial gainful 25 activity since March 26, 2008, the alleged onset date of plaintiff s 26 27 28 1 Although not discussed in the ALJ s decision, it appears that plaintiff also has past relevant work experience as an eye lens inspector. (A.R. 132.) 2 1 claimed disability. 2 the following severe impairments: 3 extremity pain, major depressive disorder with psychotic features, 4 polysubstance dependence in partial remission, and obesity. 5 ALJ also determined that plaintiff does not have an impairment or 6 combination 7 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 8 C.F.R. §§ 404.1525, 404.1526, 416.925, and 416.926). of (A.R. 15.) impairments The ALJ determined that plaintiff has that lower back pain, neck and left upper meets or equals in (Id.) severity The any (Id.) 9 10 11 After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ( RFC ) for: 12 13 medium work . . . , in that [plaintiff] can exert 20 to 50 14 pounds of force occasionally and/or 10 to 20 pounds of force 15 frequently and/or greater than negligible up to 10 pounds of 16 force constantly to move objects. . . . [Plaintiff] cannot 17 climb ladders, ropes or scaffolds, but can frequently climb 18 ramps or stairs. 19 crouch, and crawl . . . and can frequently reach and lift with 20 her 21 exposure to environmental irritants and poorly ventilated 22 areas. 23 hazardous machinery, unprotected heights, or other high risk, 24 hazardous, or unsafe conditions. [Plaintiff] can perform work 25 that is limited to simple, routine, and repetitive tasks. left upper She can frequently balance, stoop, kneel, extremity. She avoid concentrated [Plaintiff] must avoid all concentrated exposure to 26 27 must (A.R. 15-16.) 28 3 1 The ALJ concluded that plaintiff s past relevant work as a 2 housekeeping cleaner did not require the performance of work-related 3 activities precluded by plaintiff s RFC. 4 ALJ concluded that plaintiff was not disabled within the meaning of the 5 Social Security Act through the date of his decision. (A.R. 18.) Accordingly, the (A.R. 19.) 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 10 decision to determine whether it is free from legal error and supported 11 by substantial evidence in the record as a whole. 12 F.3d 625, 630 (9th Cir. 2007). 13 evidence as a reasonable mind might accept as adequate to support a 14 conclusion. 15 a mere scintilla but not necessarily a preponderance. 16 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 17 record can constitute substantial evidence, only those reasonably drawn 18 from the record will suffice. 19 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 20 21 Although this Court cannot substitute its discretion for that of 22 the Commissioner, the Court nonetheless must review the record as a 23 whole, weighing both the evidence that supports and the evidence that 24 detracts from the [Commissioner s] conclusion. 25 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 26 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 27 responsible for determining credibility, resolving conflicts in medical 28 testimony, and for resolving ambiguities. 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 1 1035, 1039 (9th Cir. 1995). 2 3 The Court will uphold the Commissioner s decision when the evidence 4 is susceptible to more than one rational interpretation. 5 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 6 review only the reasons stated by the ALJ in his decision and may not 7 affirm the ALJ on a ground upon which he did not rely. 8 at 630; see also Connett, 340 F.3d at 874. 9 the Commissioner s decision if it is based on harmless error, which 10 exists only when it is clear from the record that an ALJ s error was 11 inconsequential to the ultimate nondisability determination. Robbins 12 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 13 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 14 at 679. Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 15 16 DISCUSSION 17 18 Plaintiff claims that the ALJ failed to assess her excess pain 19 testimony properly. 20 Although 21 plaintiff s actual claim is that the ALJ failed to give clear and 22 convincing reasons for discrediting plaintiff s testimony regarding both 23 her physical complaints, including her complaints of excess pain and 24 functional restrictions, and her mental health complaints. 25 /// 26 /// 27 /// 28 /// framed (Joint Stipulation ( Joint Stip. ) at 1-25.) solely as an excess 5 pain claim, it appears that 1 2 I. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff s Testimony To Be Not Credible. 3 4 Once a disability claimant produces objective evidence of an 5 underlying impairment that is reasonably likely to be the source of his 6 subjective symptom(s), all subjective testimony as to the severity of 7 the symptoms must be considered. 8 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 9 1991)(en banc); see also 20 Moisa v. Barnhart, 367 F.3d 882, 885 C.F.R. §§ 404.1529(a), 416.929(a) 10 (explaining how pain and other symptoms are evaluated). 11 ALJ makes a finding of malingering based on affirmative evidence 12 thereof, he or she may only find an applicant not credible by making 13 specific findings as to credibility and stating clear and convincing 14 reasons for each. 15 considered in weighing a claimant s credibility include: 16 claimant s reputation for truthfulness; (2) inconsistencies either in 17 the claimant s testimony or between the claimant s testimony and his 18 conduct; (3) the claimant s daily activities; (4) the claimant s work 19 record; and (5) testimony from physicians and third parties concerning 20 the nature, severity, and effect of the symptoms of which the claimant 21 complains. 22 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). Robbins, 466 F.3d at 883. [U]nless an The factors to be (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 23 24 The ALJ found that plaintiff s medically determinable impairments 25 could reasonably be expected to cause the alleged symptoms. (A.R. 16.) 26 Further, 27 Accordingly, the ALJ s reason for rejecting plaintiff s credibility must 28 be clear and convincing. the ALJ cited no evidence 6 of malingering by plaintiff. 1 A. Plaintiff s Physical Complaints 2 3 4 Plaintiff claims that the ALJ improperly rejected her testimony regarding her excess pain and functional restrictions. 5 6 At the hearing, plaintiff testified that her back injury is the 7 most serious problem precluding her from working. (A.R. 41.) Plaintiff 8 testified that, as a result of her back injury, she cannot stand or sit 9 for extended periods of time. (Id.) Plaintiff also testified that her 10 back pain triggers tingling pain in her injured left leg and that, if 11 she sits for too long, that leg becomes numb.2 12 further testified that she has pain in her left shoulder and neck. 13 (A.R. 44-45.) 14 excruciating pain all the time. (A.R. 50.) Plaintiff She testified that it hurts when she moves and she is in (A.R. 45.) 15 16 In his decision, the ALJ stated that plaintiff s statements 17 concerning the intensity, persistence and limiting effects of [her] 18 symptoms are not credible to the extent they are inconsistent with the 19 [RFC] 20 plaintiff s physical complaints,3 the ALJ found plaintiff to be not 21 credible, because the objective medical evidence does not corroborate 22 [plaintiff s] extreme allegations of pain and functional restrictions. 23 (Id.) assessment. (A.R. 16.) Specifically, with respect to 24 25 26 2 In her Disability Report, plaintiff stated that she can sit for 30 minutes and stand for one hour without experiencing pain. (A.R. 131.) 27 3 28 In his decision, the ALJ refers to plaintiff s physical complaints as her musculoskeletal complaints. (A.R. 16.) 7 1 The ALJ s reason for finding plaintiff to be not credible is 2 neither clear nor convincing. 3 corroborate plaintiff s subjective symptom testimony fully is not, by 4 itself, 5 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Bunnell, 947 6 F.2d at 347 (noting that [i]f an adjudicator could reject a claim of 7 disability 8 supporting the severity of the pain there would be no reason for an 9 adjudicator a legally simply to sufficient because consider The failure of the medical record to basis for [plaintiff] anything rejecting fails other than to such testimony. produce medical evidence findings ). 10 Accordingly, the ALJ s finding that the objective evidence does not 11 support the extent of plaintiff s physical complaints cannot, by itself, 12 constitute a clear and convincing reason for discrediting plaintiff s 13 testimony. 14 Cotten v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch, 15 400 F.3d at 681. See Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988); 16 17 Even assuming arguendo that the ALJ s reason could form the sole 18 basis for discrediting plaintiff s testimony, it appears that, in 19 finding the severity of plaintiff s physical complaints to be not 20 supported by the objective evidence, the ALJ: 21 that was based upon an incomplete review of the available medical 22 records; and (2) failed to accurately summarize the content and tone of 23 plaintiff s medical records. 24 23 25 characterization of the record was not entirely accurate regarding the 26 content or tone ); see also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 27 Cir. 1984)(holding that it was error for an ALJ to ignore or misstate 28 competent evidence in the record to justify his conclusion). (9th Cir. (1) relied on an opinion See Reddick v. Chater, 157 F.3d 715, 722- 1998)(reversing and 8 remanding case, because ALJ s 1 In finding that the objective evidence did not support the extent 2 of plaintiff s complaints of excess pain and functional restrictions, 3 the ALJ relied, in part, on the opinion of consultative examiner Mark 4 Borigini, M.D. 5 Chiropractic Report from Willow Medical Group, Incorporated, which 6 discusse[d] x-rays done in the office, and examining plaintiff, Dr. 7 Borigini determined that plaintiff has no functional limitations with 8 respect to lifting or carrying, is able to bend and crouch, is able 9 to perform fine and gross manipulations with her hands, and is able to 10 stand, walk or sit [for] 6 hours in an 8-hour day with appropriate 11 breaks. (A.R. 282-85.) As plaintiff properly notes, however, there is 12 no 13 included significant findings not found in plaintiff s x-rays, before 14 reaching his conclusions regarding plaintiff s functional limitations 15 and capabilities. 16 based his assessment on a sufficiently complete picture of plaintiff s 17 condition, giving due consideration to all relevant medical evidence of 18 record. 19 arrange for [a consultative] examination or test, . . . [w]e will also 20 give the examiner any necessary background information about your 21 condition ). 22 form the sole basis for discrediting plaintiff, it is unclear whether 23 Dr. Borigini s opinion constitutes substantial evidence. indication In pertinent part, after reviewing a Comprehensive that Dr. Borigini reviewed plaintiff s MRIs, which Accordingly, it is unclear whether Dr. Borigingi See 20 C.F.R. §§ 404.1517, 416.917 (noting that [i]f we As a result, even assuming that the ALJ s reason could 24 25 In addition, it appears that the ALJ inaccurately characterized 26 other medical records in finding plaintiff s physical complaints to be 27 not supported by the record. 28 complaints of lumbar pain and numbness in the tailbone region, the ALJ For example, in discrediting plaintiff s 9 1 stated 2 chiropractor, Lawrence Domaracki, D.C.,] revealed normal range of motion 3 with pain only at the end range of right lateral bending. 4 The 5 thoracolumbar spine revealed pain on forward flexion and supine straight 6 leg raise to 40 degrees with pain. 7 the pain associated with plaintiff s thoracolumbar spine was reported as 8 significant, 9 Domaracki s other findings, including: that ALJ an examination further and noted of that critically, [plaintiff s] an cervical [e]xamination (Id.) the ALJ of spine [by (A.R. 17.) plaintiff s The ALJ failed to note that made no reference to Dr. (1) [tender] spinous processes 10 of L4, L5, and S1 . . . with loss of intersegmental joint range of 11 motion ; (2) marked muscular hypertonicity of the bilateral lumbar 12 spine 13 sacroiliac joint and sciatic notch; (4) hypertonicity of the quadratus 14 lumborum; (5) Kemp s test repoduc[ing] significant lumbar spine pain on 15 the right ; and (6) FABERE s test in the sitting position reproduc[ing] 16 pain in the right lower back and sacroiliac joint region. paraspinal musculature ; (3) significantly painful right (A.R. 209.) 17 18 Further, the ALJ misstated Dr. Domaracki s findings regarding an 19 MRI of plaintiff s lumbar spine. 20 the MRI showed only mild disc bulge at L3-4 and mild protrusions at 21 L4-5 with associated mild hypertrophy and narrowing of the L4-5 22 foramen. 23 Domaracki s other relevant findings, including: (1) moderate narrowing 24 of the right L4-5 lateral recess with possible impingement on the right 25 exiting L5 nerve root, secondary to protruded disc and hypertrophy of 26 the posterior element ; (2) mild hypertrophy of the posterior elements 27 [at L3-4] resulting in slight narrowing of bilateral L3-4 neural 28 foramina ; and mild hypertrophy of the posterior elements at the L5-S1 (A.R. 17.) In his decision, the ALJ stated that Significantly, the ALJ failed to address Dr. 10 1 location.4 (A.R. 234-35; emphasis added.) 2 3 Similarly, in an attempt to discredit plaintiff s complaints of 4 left shoulder pain, the ALJ stated that Dr. Domaracki s report noted 5 that plaintiff had only some mild tenderness in the subacromial 6 region . . . on range of motion. 7 to the ALJ s statement, however, Dr. Domaracki s report noted that 8 plaintiff experienced pain not only in the subacromial region but also: 9 pain to palpation over the acromioclavicular joint and to a greater 10 extent over the supraspinatus musculature ; pain over the superior 11 aspect of the shoulder upon reproduction of Speed s test, Codman s test, 12 and resisted abduction and external rotation; and pain on flexion, 13 abduction, and internal and external rotation. 14 addition, the ALJ made no reference to Dr. Domaracki s June 26, 2008 MRI 15 of plaintiff s left shoulder, which showed mild impingement with slight 16 supraspinatus rotator cuff tendinosis. (A.R. 17; emphasis added.) Contrary (A.R. 208.) In (A.R. 231.) 17 18 As demonstrated through the above examples, and contrary to 19 defendant s contention, the ALJ did not fairly summarize the record. 20 Rather, 21 regarding plaintiff s credibility first and then improperly attempted to 22 justify that conclusion by ignoring and mischaracterizing competent 23 evidence in the record and by relying on an opinion that was based upon 24 an incomplete review of the medical records. it appears that the ALJ may have reached his conclusion This constitutes error. 25 26 4 27 28 Moreover, while the ALJ purportedly gave plaintiff the benefit of the doubt and restricted her to medium work, the ALJ failed to discuss Dr. Domaracki s opinion that plaintiff could perform light office work. (A.R. 212.) 11 1 Additionally, in the Reply section of the parties Joint 2 Stipulation, plaintiff also claims that the ALJ erred when evaluating 3 her pain testimony, because he failed to discuss the August 19, 2008 4 pain management evaluation performed by Dr. Lawrence R. Miller, M.D. In 5 his evaluation of plaintiff, Dr. Miller noted that plaintiff has mild 6 left 7 subacromial tenderness in the upper extremity; positive impingement sign 8 in the shoulder; moderate right paralumbar tenderness in the lumbar 9 spine; positive facet tenderness over the right lower lumbar facet paracervical tenderness in the cervical spine; mild left 10 processes; 11 tenderness; positive sciatic nerve root tension tests; and hypoesthesia 12 in the right L4-5 dermatone. 13 plaintiff and reviewing, inter alia, the MRI of plaintiff s lumbar 14 spine, 15 impingement syndrome; and (2) lumbar intervertebral disc disruption with 16 right lumbar radiculopathy. 17 plaintiff has: 18 complaints with right radicular features ; weakness in the right lower 19 extremity and sensory loss of the right L4-5 dermatome ; and foraminal 20 disease 21 displacement of the right L5 nerve root. positive Dr. at Miller the piriformis diagnosed tenderness; positive (A.R. 242, 244.) plaintiff (A.R. 245.) with: sacroiliac After evaluating (1) left shoulder Dr. Miller further noted that left shoulder and more significant lumbar spine pain right L4-5 level with possible impingement and (A.R. 246.) 22 23 While an ALJ need not discuss every piece of evidence, an ALJ must 24 explain why significant and probative evidence -- such as the opinion of 25 Dr. Miller -- has been rejected. 26 Miller s opinion let alone to give any reason for rejecting that 27 opinion. This constitutes error. 28 relevant to plaintiff s Here, the ALJ failed to discuss Dr. Further, as Dr. Miller s opinion is allegations 12 of pain and, thus, to the 1 determination of plaintiff s credibility, the Court cannot confidently 2 conclude, as required, that the ALJ s error was inconsequential to the 3 ultimate 4 Accordingly, the ALJ s error cannot, as defendant suggests, be deemed 5 harmless. disability determination. Stout, 454 F.3d at 1055. 6 7 B. Plaintiff s Mental Health Complaints 8 9 Plaintiff claims that the ALJ failed to give clear and convincing 10 reasons for discrediting her testimony regarding her mental health 11 complaints - to wit, her alleged inability to concentrate and get along 12 with other people. 13 14 In his decision, the ALJ found plaintiff s testimony to be not 15 credible because: 16 substantial gainful activity despite a long history of depression ; (2) 17 plaintiff was able to got [sic] out alone, engage in household chores, 18 cook, pay bills and handle cash despite claims of being unable to focus 19 or concentrate; and (3) the medical record supports no additional 20 restrictions beyond a limitation to simple routine and repetitive 21 tasks. (1) plaintiff has been capable of sustaining (A.R. 17-18) 22 23 The ALJ s first ground for finding plaintiff to be not credible is 24 unavailing. 25 depression since childhood, plaintiff testified at the hearing that her 26 depression has intensified since the date she was injured at work - the 27 alleged onset date of her disability. Specifically, plaintiff testified 28 that, as a result of her increased depression, she has no motivation, no While it is true that 13 plaintiff has suffered from 1 desire 2 focusing. 3 to the physical pain she experiences as a result of her allegedly 4 disabling work injury. 5 recurrent depression and plaintiff s testimony that her depression has 6 intensified since her injury, plaintiff s prior ability to purportedly 7 sustain gainful activity - while presumably suffering from less intense 8 depression - does not constitute a clear or convincing reason, as 9 required, for finding plaintiff s testimony to be not credible. to talk to (A.R. 57.) anybody, and difficulties concentrating and Plaintiff attributes her intensified depression (A.R. 57.) In view of plaintiff s diagnosis of 10 11 The ALJ s second ground for finding plaintiff to be not credible is 12 equally unavailing. 13 alleged inability to concentrate and focus to be not credible, because 14 plaintiff told the consultative examiner that she was able to go out 15 alone, engage in household chores, cook, pay bills and handle cash. 16 (A.R. 18.) 17 reported daily activities supported his finding that plaintiff can 18 perform simple, routine, and repetitive tasks. The ALJ found plaintiff s statements regarding her Accordingly, the ALJ determined that plaintiff s self- (A.R. 18.) 19 20 At the hearing, however, plaintiff explained many of her self- 21 reported daily activities. 22 sleeping at night due to pain and is groggy throughout the day. 23 further testified that she tries to do a little bit of housework, 24 including, inter alia, washing dishes and helping take care of a puppy, 25 but her children must do the majority of the housework, because she is 26 not capable of be[ing] up [for] too long. 27 testified that she stays at home most of the time unless she has a Plaintiff testified that she has difficulty 28 14 (A.R. 52.) She Plaintiff also 1 doctor s appointment or an outing with Pacific Clinics.5 2 3 Contrary to the ALJ s finding, plaintiff s self-reported activities 4 do 5 concentrate. 6 plaintiff s minimal daily activities and household chores translate into 7 the ability to perform sustained work. 8 602 (9th Cir. 1989)(noting that many home activities are not easily 9 transferable to what may be the more grueling environment of the 10 workplace ); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 11 2001)(noting that the mere fact that a plaintiff has carried on certain 12 daily activities, such as grocery shopping, driving a car, or limited 13 walking for exercise, does not in any way detract from [plaintiff s] 14 credibility as to her overall disability ). 15 second 16 convincing. not appear to contradict her asserted inability to focus and Moreover, and significantly, the ALJ fails to explain how reason for discrediting See Fair v. Bowen, 885 F.2d 597, plaintiff Accordingly, the ALJ s is neither clear nor 17 18 The ALJ s last ground for finding plaintiff to be not credible - 19 to wit, that the medical record does not support a greater restriction 20 beyond simple, routine, and repetitive tasks -- is also unavailing.6 As 21 5 22 23 24 25 26 27 28 At the hearing, plaintiff testified that her outings with Pacific Clinics included, among other things, attending classes for survivors of domestic violence, attending therapeutic arts and crafts classes, and going out to restaurants. (A.R. 53-54.) 6 In reaching his conclusion, the ALJ noted the December 4, 2008 evaluation of consultative psychiatric examiner Ashraf Elmashat, M.D., who found that plaintiff has no significant mental limitations despite his finding that plaintiff had major depressive disorder and polysubstance dependence. (A.R. 18, 288-94.) The ALJ also referred to the January 29, 2009 report of State Agency physician R. Tashjian, M.D., who found that plaintiff s mental impairments are not severe, notwithstanding a diagnosis that plaintiff has affective and substance addiction disorders. (A.R. 18, 298.) Nevertheless, the ALJ purportedly 15 1 discussed above, the failure of the medical evidence to corroborate 2 fully the extent of plaintiff s subjective symptom testimony cannot, by 3 itself, form the sole basis for discrediting plaintiff. Since the ALJ s 4 other two reasons for rejecting plaintiff s testimony are neither clear 5 nor convincing, the ALJ s third reason cannot, by itself, constitute a 6 clear and convincing reason for discrediting plaintiff s testimony.7 7 8 II. Remand Is Required. 9 10 The decision whether to remand for further proceedings or order an 11 immediate award of benefits is within the district court s discretion. 12 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 13 useful purpose would be served by further administrative proceedings, or 14 where the record has been fully developed, it is appropriate to exercise 15 this discretion to direct an immediate award of benefits. 16 ( [T]he decision of whether to remand for further proceedings turns upon 17 the likely utility of such proceedings. ). 18 outstanding issues that must be resolved before a determination of Where no Id. at 1179 However, where there are 19 20 21 gave plaintiff the benefit of the doubt based on her treatment history for depression and documented usage of psychotropic medications by limiting plaintiff to simple, routine, and repetitive tasks. (A.R. 18.) 7 22 23 24 25 26 27 28 Moreover, as noted by plaintiff, it appears that plaintiff s psychiatric record is not complete. A close review of the record reveals that requests for medical records were sent to Pacific Clinics, plaintiff s primary psychiatric treatment facility, on September 29, 2008 (A.R. 317, 328), and October 14, 2008 (A.R. 314, 325). In response to the requests, Pacific Clinics sent a treatment record dated August 29, 2008, which was incorporated into the evidentiary record. (A.R. 331.) Significantly, no other request for medical records was sent to Pacific Clinics, despite plaintiff s indication both in her Disability Report and at the hearing that her treatment at Pacific Clinics was ongoing. Given plaintiff s diagnosis of recurrent depression and the sheer paucity of medical records from Pacific Clinics, the ALJ should further develop the record in order to consider plaintiff s testimony and RFC properly. 16 1 disability can be made, and it is not clear from the record that the ALJ 2 would be required to find the claimant disabled if all the evidence were 3 properly evaluated, remand is appropriate. Id. at 1179-81. 4 5 Remand is the appropriate remedy to allow the ALJ the opportunity 6 to remedy the above-mentioned deficiencies and errors. 7 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 8 further proceedings is appropriate if enhancement of the record would be 9 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 10 See, e.g., (remand appropriate to remedy defects in the record). 11 12 On remand, the ALJ must correct the above-mentioned deficiencies 13 and errors. 14 testimony regarding both her mental health and physical complaints and, 15 if appropriate, give clear and convincing reasons for rejecting it. 16 addition, the ALJ may need to reassess plaintiff s RFC, in which case, 17 additional testimony from a vocational expert likely will be needed to 18 determine what work, if any, plaintiff can perform. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// After so doing, the ALJ needs to reconsider plaintiff s 28 17 In 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: April 8, 2011 13 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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