Connie D. Rosales v. Michael J. Astrue, No. 2:2010cv01771 - Document 24 (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 forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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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 CONNIE D. ROSALES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-01771-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 15, 2010, seeking review of 19 the denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for disability insurance benefits ( DIB ). 21 May 13, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to 22 proceed before the undersigned United States Magistrate Judge. 23 parties filed a Joint Stipulation on February 18, 2011, in which: 24 plaintiff seeks an order reversing the Commissioner s decision and 25 remanding this case for the payment of benefits; and defendant requests 26 that the Commissioner s decision be affirmed or, alternatively, remanded 27 for 28 parties Joint Stipulation under submission without oral argument. further administrative proceedings. On The The Court has taken the 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 Plaintiff, who was born on December 8, 1953,1 filed an application 3 4 for DIB. 5 have been disabled since November 11, 2003, due to musculoskeletal 6 impairments, spinal and back injury, and depression. 7 Plaintiff has past relevant work experience as a maternity ward nurse. 8 (A.R. 30, 81, 882.) (Administrative Record ( A.R. ) 24, 87.) Plaintiff claims to (A.R. 24, 80.) 9 10 After the Commissioner denied plaintiff s claim (A.R. 61-66), 11 plaintiff requested a hearing (A.R. 67). 12 who was represented by counsel, appeared and testified at a hearing 13 before Administrative Law Judge Sally C. Reason (the ALJ ). (A.R. 876- 14 900.) 15 October 26, 2007, the ALJ denied plaintiff s claim (A.R. 24-32), and the 16 Appeals Council subsequently denied plaintiff s request for review of 17 the ALJ s decision (A.R. 5-8). 18 action. On March 14, 2007, plaintiff, Vocational expert Gregory S. Jones also testified. (Id.) On That decision is now at issue in this 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 The ALJ found that plaintiff has not engaged in substantial gainful 23 activity since November 11, 2003, the alleged onset date of plaintiff s 24 claimed disability. 25 severe (A.R. 24.) impairments lie in The ALJ determined that plaintiff s the musculoskeletal realm, primarily 26 27 28 1 At the time of the ALJ s decision, plaintiff was 53 years old, which is defined as an individual closely approaching advanced age. (A.R. 24, 30; 20 C.F.R. § 404.1563.) 2 1 involving the lumbar spine and secondarily, the cervical spine. 2 25.) 3 determinable 4 severe. 2 5 have [a]n impairment or a combination of impairments that meets or 6 equal[s] in severity an impairment listed at Appendix 1 to Subpart P of 7 Regulations no. 4. (A.R. The ALJ also determined that plaintiff s headaches and medically impairment (Id.) of depressive disorder, NOS, are not The ALJ further determined that plaintiff does not (A.R. 31.) 8 9 After reviewing the record, the ALJ determined that plaintiff has 10 the residual functional capacity ( RFC ) for light work, with the 11 exception 12 stooping and crouching. that she is limited to occasionally climbing ladders, (A.R. 25, 31.) 13 14 The ALJ concluded that plaintiff is unable to perform her past 15 relevant work. 16 age, education, work experience, RFC, as well as the testimony of the 17 vocational expert, the ALJ found that jobs exist in the national economy 18 that plaintiff could perform, including those of office nurse or school 19 nurse. 20 not been under a disability, as defined in the Social Security Act, at 21 any time through the date of [her] decision. (A.R. 30-32.) (A.R. 31.) However, having considered plaintiff s Accordingly, the ALJ concluded that plaintiff has (A.R. 32.) 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 26 2 27 28 The ALJ also noted that plaintiff has a history of carpal tunnel syndrome, with no showing or claim of an active problem material to the pending application and mild to moderate sleep apnea, [which plaintiff] does not allege . . . as a limiting condition. (A.R. 25.) 3 1 decision to determine whether it is free from legal error and supported 2 by substantial evidence in the record as a whole. 3 F.3d 625, 630 (9th Cir. 2007). 4 evidence as a reasonable mind might accept as adequate to support a 5 conclusion. 6 a mere scintilla but not necessarily a preponderance. 7 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 8 record can constitute substantial evidence, only those reasonably drawn 9 from the record will suffice. 10 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, 1066 (9th Cir. 2006)(citation omitted). 11 12 Although this Court cannot substitute its discretion for that of 13 the Commissioner, the Court nonetheless must review the record as a 14 whole, weighing both the evidence that supports and the evidence that 15 detracts from the [Commissioner s] conclusion. 16 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 17 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 responsible for determining credibility, resolving conflicts in medical 19 testimony, and for resolving ambiguities. 20 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 21 22 The Court will uphold the Commissioner s decision when the evidence 23 is susceptible to more than one rational interpretation. 24 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 25 review only the reasons stated by the ALJ in his decision and may not 26 affirm the ALJ on a ground upon which he did not rely. 27 at 630; see also Connett, 340 F.3d at 874. 28 the Commissioner s decision if it is based on harmless error, which 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 exists only when it is clear from the record that an ALJ s error was 2 inconsequential to the ultimate nondisability determination. Robbins 3 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 4 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 5 at 679. 6 7 DISCUSSION 8 9 Plaintiff claims that the ALJ improperly evaluated the opinion of 10 plaintiff s treating physician. 11 1-18.) (Joint Stipulation ( Joint Stip. ) at 12 13 14 I. The ALJ Failed To Give Clear And Convincing Reasons For Rejecting The March 2007 Opinion Of Plaintiff s Treating Physician. 15 16 It is the responsibility of the ALJ to resolve conflicts in medical 17 testimony and analyze evidence. 18 (9th Cir. 1989). 19 assessing a social security claim, [g]enerally, a treating physician s 20 opinion carries more weight than an examining physician s, and an 21 examining physician s opinion carries more weight than a reviewing 22 physician s. 23 2001); 20 C.F.R. § 404.1527(d). The opinions of treating physicians are 24 entitled to the greatest weight, because the treating physician is hired 25 to cure and has a better opportunity to observe the claimant. 26 340 F.3d at 874; Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 27 2002); Magallanes, 881 F.2d at 751. When a treating physician s opinion 28 is not contradicted by another physician, it may be rejected only for Magallanes v. Bowen, 881 F.2d 747, 750 In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 5 F.3d 1195, 1202 (9th Cir. Connett, 1 clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th 2 Cir. 1995)(as amended). When contradicted by another doctor, a treating 3 physician s opinion may only be rejected if the ALJ provides specific 4 and legitimate reasons supported by substantial evidence in the record. 5 Id.; see also Orn, 495 F.3d at 632; Ryan v. Comm r of Soc. Sec., 528 6 F.3d 1194, 1198 (9th Cir. 2008). 7 8 9 On April 9, 2005, plaintiff had a consultative examination with Kambiz Hannani, M.D., an orthopedic surgeon. (A.R. 201-04.) Dr. 10 Hannani noted that plaintiff presented with complaints of neck and low 11 back pain stemming from a 1998 work injury. 12 examination of plaintiff revealed, inter alia: 13 motion in the cervical and thoraculombar spine; (2) tenderness to 14 palpation in the cervicothoracic and lumbosacral junction; and (3) 15 negative straight leg raise testing. 16 appears that Dr. Hannani was not provided with plaintiff s entire 17 medical record, he was able to review x-rays of plaintiff s cervical and 18 lumbar spine, which showed a moderate amount of spondylosis at C4-C6 and 19 traction 20 plaintiff s x-rays and physically examining plaintiff, Dr. Hannani 21 opined that plaintiff has degenerative disk disease in both her lumbar 22 and cervical spine. 23 plaintiff is limited to lifting and carrying 20 pounds occasionally and 24 10 pounds frequently, [and] standing and/or walking six hours out of an 25 eight hour day. osteophytes at L3-L4-L5. (A.R. 204.) (A.R. 201.) (1) reduced range of (A.R. 202-03.) (A.R. A physical 204.) Although it After reviewing Dr. Hannani further opined that (Id.) 26 27 An April 26, 2005 RFC Assessment Physical by state agency physician 28 F. Wilson, M.D. largely mirrored Dr. Hannani s RFC assessment, although 6 1 Dr. Wilson additionally opined that plaintiff: 2 occasional stooping, crouching, and climbing of ladders, ropes, and 3 scaffolds; and (2) should avoid concentrated exposure to extreme cold 4 and heat. (1) was limited to (A.R. 225-33.) 5 6 After plaintiff s initial consultative examination with Dr. 7 Hannani, plaintiff began to see Dr. Hannani regularly. On June 9, 2005, 8 plaintiff saw Dr. Hannani for an orthopedic spinal evaluation. 9 666-68.) Dr. Hannani noted that plaintiff presented with: (A.R. neck pain 10 with radiation into the left upper extremity ; low back pain with 11 radiation into the left lower extremity ; pain [in] the right upper 12 extremity ; and very minimal [pain in] the right lower extremity. 13 (A.R. 666.) 14 a bit of an antalgic gait on the left side ; limited lumbar and 15 cervical spine range of motion; tenderness in the biceps and paraspinal 16 muscles; decreased sensation in the upper and lower extremities; and 17 positive straight leg raise testing. (A.R. 667-68.) After reviewing x- 18 rays and July 2004 MRIs of plaintiff s cervical and lumbar spine, Dr. 19 Hannani opined that plaintiff has: 20 likely 21 spondylosis at C3-4 and C5-6"; and (2) left-sided L5 radiculopathy with 22 disk herniation, left-sided L4-5. 23 recommending any treatment options for plaintiff, Dr. Hannani wanted to 24 review new MRIs of plaintiff s cervical and lumbar spine. [at] A physical examination of plaintiff revealed, inter alia: C5 and C6, with (1) left-sided radiculopathy, most some central stenosis (A.R. 668.) at C4-5 and However, before (Id.) 25 26 On June 15, 2005, plaintiff had MRIs of her cervical and lumbar 27 spine. 28 interval change[s], Dr. Hannani noted that the MRI showed: While the updated cervical spine MRI showed no significant 7 (1) a 2 mm 1 disc/osteophyte complex bulge . . . at C3-4 with mild central canal 2 stenosis 3 disc/osteophyte complex bulge . . . at C4-5 with mild to moderate 4 central canal stenosis and mild bilateral neural foraminal narrowing; 5 and at C5-6, [a] 2 mm disc/osteophyte complex bulge with mild to 6 moderate 7 narrowing. 8 lumbar spine MRI showed new changes, including: 9 bulge at L2-3 and L3-4; (2) a worsened 6-7 mm left paracentral and mild central left canal (A.R. 697.) neural foraminal stenosis and narrowing ; mild left a neural 2-3 mm foraminal Unlike the cervical spine MRI, the updated (1) a 2 mm diffuse disc 10 protrusion 11 compresses the L5 nerve root ; and (3) a slightly increased 3 mm 12 diffuse disc bulge at L5-S1. at L4-5 that resides in the left lateral recess and (A.R. 694-95.) 13 14 After reviewing plaintiff s updated MRIs, Dr. Hannani discussed 15 plaintiff s options to address her leg and back pain. 16 her leg pain, Dr. Hannani recommended that plaintiff have a small open 17 microdiskectomy procedure which would involve tak[ing] out the disk 18 herniation and free[ing] up the L5 nerve root. 19 Hannani explained to plaintiff, however, that the procedure is only 20 designed to help plaintiff s leg pain and, in fact, may aggravate her 21 low back pain. 22 Hannani stated that plaintiff will likely require a stabilization 23 [procedure], which again is a big surgery, [but he] would not recommend 24 it for her at this time. (A.R. 666.) With respect to (A.R. 665-66.) Dr. To address plaintiff s back pain, Dr. (A.R. 665.) 25 26 On July 13, 2005 plaintiff underwent a microdiskectomy surgery to 27 alleviate the pain in her left leg. 28 Dr. Hannani wrote a letter in which he indicated that, for at least the 8 (A.R. 244-45.) On July 18, 2005, 1 next three months, plaintiff is: 2 than 10 pounds occasionally and no greater than 5 pounds frequently ; 3 (2) 4 precluded from standing for greater than 4 hours a day. 5 63.) precluded from frequent (1) limited to no lifting greater bending and/or stooping ; and (3) (A.R. 662- 6 7 In the months following surgery, plaintiff s left leg improved; 8 however, plaintiff continued to experience pain in her back and began to 9 experience pain in her right lower extremity.3 However, although 10 plaintiff 11 against a stabilization procedure at that time, in part, because 12 plaintiff s daughter recently died and the resulting stress can easily 13 exacerbate [plaintiff s] neurological findings. reported significant back pain, Dr. Hannani recommended (A.R. 660-61.) 14 15 In December 2005, plaintiff was involved in a car accident and 16 reported significant low back and neck pain. 17 December 19, 2005 examination of plaintiff revealed lumbar and cervical 18 range of motion was about 50% of expected [range of motion]. 19 Plaintiff also had tenderness to palpation in the cervicothoracic [and] 20 thoracolumbar junction, and some trapezial tenderness too. (Id.) In 21 addition, plaintiff had positive straight leg raise testing on both 22 sides. (Id.) (A.R. 659-60.) A (Id.) Accordingly, Dr. Hannani opined that plaintiff had an 23 24 25 26 27 28 3 A.R. 663 (07/18/05 - leg pain is a lot better ; [s]traightleg[-]raise testing on the left at about 80 degrees causes some pain ); A.R. 662 (08/18/05 - leg has improved ; some right-sided paraspinal pain ; continuing to have back pain ; A.R. 661 (10/20/05 [f]ortunately her leg pain has improved, but she continues to have a lot of back pain as well as some neck symptoms ); A.R. 660 (12/08/05 degenerative disk disease, status post left-sided microdiskectomy with significant improvement in the left lower extremity ; continued low back pain with right lower extremity radiculitis ). 9 1 acceleration-deceleration injury with increased low back pain and now 2 radiation into the left lower extremity, which she did not have after 3 . . . surgery ; and neck pain with radiation, which she had before 4 surgery and is aggravated by the accident. (Id.) 5 6 Following her car accident, plaintiff continued to report pain in 7 her back and left leg.4 8 straight leg raise testing, Dr. Hannani s treatment notes indicate that 9 plaintiff has, inter alia: While plaintiff tested inconsistently on weakness in her left big toe (A.R. 658); an 10 antalgic gait on the left side (A.R. 657); decreased sensation in the 11 left lower extremity (A.R. 654); limited lumbar range of motion (id.); 12 tenderness to palpation in the lumbosacral junction (id.); and low back 13 pain status post diskectomy, with degenerative disk disease (id.). 14 Dr. Hannani noted that plaintiff has obvious degenerative disk disease 15 for which she may end up with a stabilization procedure, but [Dr. 16 Hannani] would wait until this becomes severe. 17 in a March 9, 2006 form entitled Return To Work Information, Dr. 18 Hannani found plaintiff to be temporarily totally disabled. 19 669-71.) 20 Hannani found plaintiff to have a significant limitation in the use of 21 her lower extremities due to post diskectomy with degenerative disk 22 disease. (Id.) Additionally, (A.R. Further, in a DMV certificate dated November 2, 2006, Dr. (A.R. 700.) 23 24 25 26 27 28 4 See, e.g., A.R. 657-58 (02/20/06 - plaintiff is still complaining of pain becoming a lot worse after her motor vehicle accident ; has some radiating pain going down the leg ; getting more cramping in the left leg again ); A.R. 656-57 (03/09/06 - plaintiff is in a lot of pain in her back radiating into her legs ; left leg definitely improved with the surgery, but then after the car accident she has been having more and more symptoms ). 10 1 In a March 1, 2007 Orthopedic Follow-Up Evaluation, plaintiff 2 presented with continued back and leg pain with radiation. 3 After physically examining plaintiff, Dr. Hannani noted that plaintiff 4 has limited range of motion of her back with no subluxation and that 5 her [m]otor and sensory exams look okay. 6 that 7 degenerative disk disease, lumbar spine. 8 that, while plaintiff had microdisketomy surgery, she continues to have 9 back and lower extremity pain, especially after she was involved in the 10 car accident. (Id.) He further noted that plaintiff s surgery did not 11 address her degenerative disk disease at the L4-5 and L5-S1 locations 12 and [u]nfotunately, fixing this would involve a big surgery, front and 13 back, which we have been trying to avoid for her. 14 [g]iven the fact that [plaintiff] continues to have the internal disk 15 disruption and postlaminectomy syndrome, Dr. Hannani fe[lt] that she 16 is very limited and therefore, restricted plaintiff to lifting and 17 carrying 10 pounds occasionally, less than 10 pounds frequently ; and 18 stand[ing] and walk[ing] 2 hours out of an 8-hour day. plaintiff has status post (Id.) decompression (Id.) (A.R. 713.) Dr. Hannani opined with significant Dr. Hannani noted (Id.) Accordingly, (Id.) 19 20 As plaintiff properly notes, this case is unusual, because Dr. 21 Hannani served initially as plaintiff s consultative examiner and later 22 as plaintiff s treating physician. In his decision, the ALJ rejects Dr. 23 Hannani s March 2007 treating source assessment, because the cumulative 24 medical and lay evidence does not warrant a change from Dr. Hannani s 25 assessment in April 2005. (A.R. 30.) Specifically the ALJ rejects Dr. 26 Hannani s opinion because: 27 the accident ; (2) Dr. Hannani s discussion of the lower extremities in 28 March 2007 is somewhat peculiar in that essentially positive findings (1) [t]here have been no new studies since 11 1 continued to be [reported] in the admittedly improved left lower 2 extremity ; and (3) Dr. Hannini continued to recommend against another 3 back surgery. (Id.) 4 5 The ALJ s first ground for rejecting Dr. Hannani s March 2007 6 opinion - to wit, that there have been no studies since plaintiff s car 7 accident - is not convincing. 8 April 2005 assessment is based upon a one-time physical examination of 9 plaintiff, for which Dr. Hannani was provided some, but not all, of As an initial matter, Dr. Hannani s 10 plaintiff s medical records. 11 based upon a complete review of the medical records - including, inter 12 alia, old and new MRIs of plaintiff s cervical and lumbar spine - and 13 multiple physical examinations of plaintiff. Notwithstanding this fact, 14 the ALJ rejects Dr. Hannani s March 2007 opinion, because there have 15 been no new studies since plaintiff s car accident. While post-accident 16 studies undoubtedly would have been helpful, the fact that there were no 17 such studies cannot constitute a convincing reason for rejecting Dr. 18 Hannani s March 2007 opinion - an opinion that is uncontroverted and 19 informed by a complete review of the medical record, updated studies, 20 and multiple physical examinations of plaintiff. 21 found such studies necessary, the ALJ should have developed the record 22 further.5 23 2001)(noting that an ALJ has an independent duty to fully and fairly 24 develop the record and to assure that the claimant s interests are 25 considered )(citations and internal quotations omitted); see Widmark, 26 454 F.3d at 1069 (ALJ has a duty to develop the record where there is a Tonapetyan v. Dr. Hannani s March 2007 assessment is Halter, 242 F.3d To the extent the ALJ 1144, 1150 (9th Cir. 27 5 28 The record indicates that additional studies were submitted following the ALJ s decision. (See, e.g., A.R. 852-67.) 12 1 gap in the medical evidence). 2 3 The ALJ s second ground for rejecting Dr. Hannani s March 2007 4 opinion is also unpersuasive. 5 the ALJ found Dr. Hannani s discussion of plaintiff s lower extremities 6 somewhat peculiar in that essentially positive findings continued to be 7 [reported] in the admittedly improved left lower extremity. (A.R. 30.) 8 Although it is true that plaintiff reported improvement in her left 9 lower extremity following surgery, as noted supra, plaintiff reported, 10 and Dr. Hannani s physical examinations indicate, significant worsening 11 in plaintiff s lower extremities after her car accident. 12 656-58.) Thus, when Dr. Hannani s treatment notes are read together, it 13 does not appear, as the ALJ contends, that plaintiff continues to have 14 essentially positive findings in her lower extremities following her 15 surgery. 16 1998)(reversing and remanding case, because ALJ s characterization of 17 the record was not entirely accurate regarding the content or tone ); 18 see also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)(holding 19 that it was error for an ALJ to ignore or misstate competent evidence in 20 the record to justify his conclusion) 21 found 22 extremities, the ALJ should have recontacted Dr. Hannani in accordance 23 with his duty to conduct an appropriate inquiry. See 20 C.F.R. § 24 404.1512(e) seek 25 evidence or clarification from your medical source when the report . . . 26 from 27 resolved ). 28 clear and convincing reason for rejecting Dr. Hannani s March 2007 it In rejecting his March 2007 assessment, (A.R. 654, See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. peculiar (noting that that Dr. the Moreover, to the extent the ALJ Hannani discussed administration plaintiff s will lower additional your medical source contains a conflict or ambiguity that must be Accordingly, the ALJ s second ground cannot constitute a 13 1 opinion. 2 3 The ALJ s third ground for rejecting Dr. Hannani s March 2007 4 opinion - to wit, that Dr. Hannani continued to recommend against back 5 surgery - is equally unpersuasive. 6 treating physician s opinion may be properly rejected when his treatment 7 notes fail to present the sort of descriptions and recommendations one 8 would expect to accompany a finding that [the claimant is] totally 9 disabled. It is well established that a Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). In 10 this case, Dr. Hannani explained that, although plaintiff may need back 11 surgery due to her degenerative disk disease, he has tried to avoid it 12 because of, inter alia, plaintiff s emotional state (A.R. 660-61) and 13 the invasiveness of the surgery (A.R. 713). 14 explained why he has recommended that plaintiff not have an invasive 15 back surgery at this time, and thus, the ALJ s reasoning does not 16 constitute a clear and convincing reason for rejecting Dr. Hannani s 17 March 2007 opinion. Dr. Hannani has adequately 18 19 Lastly, while defendant offers several additional reasons to 20 explain the ALJ s rejection of Dr. Hannani s March 2007 opinion, the 21 Court cannot entertain these post hoc rationalizations. 22 Connett, 340 F.3d at 874 (stating [w]e are constrained to review the 23 reasons the ALJ asserts and [i]t was error for the district court to 24 affirm the ALJ s credibility decision based on evidence that the ALJ did 25 not discuss ). See, e.g., 26 27 Accordingly, for the aforementioned reasons, the ALJ failed to give 28 clear and convincing reasons for rejecting the uncontroverted March 2007 14 1 opinion 2 constitutes reversible error.6 of plaintiff s treating physician, Dr. Hannani. This 3 4 III. Remand Is Required. 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 9 useful purpose would be served by further administrative proceedings, or 10 where the record has been fully developed, it is appropriate to exercise 11 this discretion to direct an immediate award of benefits. Where no Id. at 1179 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Even assuming arguendo that the ALJ did not commit error in rejecting Dr. Hannani s March 2007 opinion, it appears that the ALJ s RFC assessment is not supported by substantial evidence. In his decision, the ALJ generally adopts Dr. Hannani s April 2005 RFC assessment; however, in light of the MRI finding and giving some weight to the state agency s assessment, the ALJ f[ound] that [plaintiff] has been limited to occasional ladder climbing, stooping and crouching since her alleged onset date. (A.R. 30.) Significantly, however, Dr. Hannani s April 2005 report and the state agency physician s assessment predate plaintiff s updated MRIs. Accordingly, the ALJ s inclusion of additional limitations in light of the MRI findings constitutes a medical finding that the ALJ is not qualified to make. See generally, Tackett v. Apfel, 180 F.3d 1094, 1102 (ALJ may not substitute his own interpretation of the medical evidence for the opinion of medical professionals); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006)(noting that an ALJ must not succumb to the temptation to play doctor and make [his] own independent medical findings )(citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)). In addition, there is no indication that the side effects of plaintiff s medications - including, inter alia, Vicodin and morphine (A.R. 884) - were considered in the disability evaluation. See Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993)(noting that an ALJ must consider all factors, including the side effects of medications, that might have a significant impact on an individual s ability to work )(citation omitted); see also Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2-*3, 1996 SSR LEXIS 4, at *7-*8 (noting that the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms should be considered in the disability evaluation); 20 C.F.R. § 404.1529(c)(3)(iv). 15 1 ( [T]he decision of whether to remand for further proceedings turns upon 2 the likely utility of such proceedings. ). 3 outstanding issues that must be resolved before a determination of 4 disability can be made, and it is not clear from the record that the ALJ 5 would be required to find the claimant disabled if all the evidence were 6 properly evaluated, remand is appropriate. However, where there are Id. at 1179-81. 7 8 9 Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., 10 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 11 further proceedings is appropriate if enhancement of the record would be 12 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 13 (remand appropriate to remedy defects in the record). 14 ALJ must correct the above-mentioned deficiencies and errors, and, if 15 appropriate, further develop the record. 16 need to reassess plaintiff s RFC in which case additional testimony from 17 a vocational expert likely will be needed to determine what work, if 18 any, plaintiff can perform. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 16 On remand, the After so doing, the ALJ may 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: June 28, 2011 13 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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