Lashondra R. Richardson v. Michael J. Astrue, No. 2:2010cv04186 - Document 15 (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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 LASHONDRA R. RICHARDSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 10-04186-MAN MEMORANDUM OPINION AND ORDER 16 17 Plaintiff filed a Complaint on June 10, 2010, seeking review of the 18 denial of plaintiff s application for supplemental security income 19 ( SSI ). 20 § 636(c), to proceed before the undersigned United States Magistrate 21 Judge. The parties filed a Joint Stipulation on February 24, 2011, in 22 which: plaintiff seeks an order reversing the Commissioner s decision 23 and 24 administrative proceedings; and the Commissioner requests that his 25 decision 26 administrative proceedings. 27 Stipulation under submission without oral argument. 28 /// On July 22, 2010, the parties consented, pursuant to 28 U.S.C. awarding be benefits affirmed or, or, alternatively, alternatively, remanding remanded for for further further The Court has taken the parties Joint 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On August 14, 2006, plaintiff filed an application for SSI. 4 (Administrative Record ( A.R. ) 9.) Plaintiff, who was born on August 5 9, 1988 (A.R. 13),1 claims to have been disabled since March 7, 2005 6 (A.R. 9), due to lupus (A.R. 41, 64). 7 After the Commissioner denied plaintiff s claim (A.R. 41-45), 8 9 plaintiff requested a hearing (A.R. 46). On March 11, 2008, plaintiff, 10 who was not represented by counsel, appeared and testified at a hearing 11 before Administrative Law Judge London L. Steverson ( ALJ Steverson ). 12 (A.R. 20-39.) 13 also testified. 14 claim 15 plaintiff s request for review of ALJ Steverson s decision (A.R. 1-5). 16 That decision is now at issue in this action. (A.R. At the hearing, plaintiff s mother, Linda Richardson, On March 28, 2008, ALJ Steverson denied plaintiff s 9-14), and the Appeals Council subsequently denied 17 18 SUMMARY OF ADMINISTRATIVE DECISION 19 20 ALJ Steverson found that plaintiff has not engaged in substantial 21 gainful activity during the period at issue. 22 determined 23 erythematosus. 24 an impairment or a combination of impairments that meets or equals one 25 of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 that plaintiff (Id.) has (A.R. 11.) hypertension and ALJ Steverson systemic lupus He also determined that plaintiff does not have 26 27 28 1 On the date the application was filed, plaintiff was 18 years old, which is defined as a younger individual. (A.R. 13; citing 20 C.F.R. § 416.963.) 2 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). (Id.) 2 3 After reviewing the record, ALJ Steverson determined that plaintiff 4 has the residual functional capacity ( RFC ) to perform light work. 5 (A.R. 11.) 6 person at a grocery store from August 2005 to April 2006 - a job which 7 appears to have involved light, unskilled work activities. (A.R. 13.) 8 However, according to a summary earnings query, plaintiff s wages were 9 minimal. He noted that plaintiff worked as a courtesy clerk/box (Id.) Accordingly, he decline[d] to make a finding that 10 plaintiff is not disabled because she is able to engage in past relevant 11 work. (Id.) 12 13 ALJ Steverson determined that [t]ransferability of job skills is 14 not an issue because [plaintiff] does not have past relevant work. 15 (A.R. 13.) 16 experience, 17 Guidelines, he found that jobs exist in significant numbers in the 18 national 19 Accordingly, 20 disability, as defined in the Social Security Act, at any time through 21 the date of [his] decision. However, having considered plaintiff s age, education, work and economy he RFC that in connection plaintiff concluded that with can the Medical-Vocational perform. plaintiff has (A.R. not been 13-14.) under a (A.R. 14.) 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 26 decision to determine whether it is free from legal error and supported 27 by substantial evidence in the record as a whole. 28 F.3d 625, 630 (9th Cir. 2007). Orn v. Astrue, 495 Substantial evidence is such relevant 3 1 evidence as a reasonable mind might accept as adequate to support a 2 conclusion. 3 a mere scintilla but not necessarily a preponderance. 4 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 5 record can constitute substantial evidence, only those reasonably drawn 6 from the record will suffice. 7 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 8 9 Although this Court cannot substitute its discretion for that of 10 the Commissioner, the Court nonetheless must review the record as a 11 whole, weighing both the evidence that supports and the evidence that 12 detracts from the [Commissioner s] conclusion. 13 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 14 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 15 responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities. 17 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 18 19 The Court will uphold the Commissioner s decision when the evidence 20 is susceptible to more than one rational interpretation. 21 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 22 review only the reasons stated by the ALJ in his or her decision and 23 may not affirm the ALJ on a ground upon which he [or she] did not rely. 24 Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. 25 not reverse the Commissioner s decision if it is based on harmless 26 error, which exists only when it is clear from the record that an ALJ s 27 error 28 determination. was inconsequential to the Burch v. However, the Court may ultimate The Court will nondisability Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 4 1 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 2 2006)); see also Burch, 400 F.3d at 679. 3 DISCUSSION 4 5 6 Plaintiff makes the following claims: (1) ALJ Steverson lacked the 7 candor to judge credibility and make impartial decisions, and 8 therefore, the Court should reverse and remand for a de novo hearing 9 before an impartial and candid administrative law judge ( ALJ ); and (2) 10 ALJ Steverson improperly assessed plaintiff s RFC. (Joint Stipulation 11 ( Joint Stip. ) at 4-6, 8-12, 20-22.) 12 13 I. 14 Plaintiff Has Failed To Meet Her Burden Of Establishing A Disqualifying Interest. 15 16 Plaintiff claims that the Court should remand this case for a de 17 novo hearing before an impartial and candid ALJ. 18 Specifically, plaintiff claims that, because ALJ Steverson has been 19 found to lack candor, plaintiff cannot have confidence that he was 20 truthful in judging credibility and in issuing decisions. (Id. at 5.) (Joint Stip. at 4-6.) 21 22 There is a general presumption that administrative adjudicators, 23 such as an 24 authority with honesty and integrity. 25 U.S. 188, 195-96, 102 S. Ct. 1665 (1982); Withrow v. Larkin, 421 U.S. 26 35, 47, 95 S. Ct. 1456 (1975); Rollins v. Massanari, 261 F.3d 853, 857 27 (9th Cir. 2001). 28 conflict of ALJ, are unbiased and exercise their decision-making See Schweiker v. McClure, 456 To rebut this presumption, plaintiff must show a interest or some 5 other specific reason for 1 disqualification. Id. at 857-58. In other words, plaintiff must 2 establish that the ALJ s behavior, in the context of the whole case, 3 was so extreme as to display clear inability to render fair judgment. 4 Id. at 858 (internal punctuation omitted; emphasis added). 5 6 In this case, plaintiff has failed to meet her heavy burden. While 7 it is true that ALJ Steverson was found, inter alia, to lack candor in 8 connection with an investigation into his personal use of his official 9 title, agency letterhead, and agency equipment, and ultimately was 10 removed from his ALJ position,2 plaintiff has failed to point to any 11 evidence 12 prejudice, or any other disqualifying interest in her case. 13 words, plaintiff has not established that ALJ Steverson s behavior in 14 the context of her case displayed a clear inability to render fair 15 judgment. 16 however, the Court, for the reasons set forth below, is remanding this 17 case, and because ALJ Steverson has been removed from his position as an 18 ALJ, this case will be remanded to another ALJ. that he lacked candor or otherwise demonstrated bias, In other Notwithstanding plaintiff s failure to meet her burden, 19 20 II. ALJ Steverson Failed To Give Specific And Legitimate Reasons 21 Supported By Substantial Evidence For Rejecting The Opinions Of 22 Plaintiff s 23 Credibility And RFC Assessment Need To Be Revisited On Remand. Treating Doctors, And Therefore, Plaintiff s 24 25 26 Plaintiff claims that ALJ Steverson improperly assessed her RFC. In making this claim, plaintiff raises two additional claims: (1) ALJ 27 2 28 See SSA v. Steverson, 2009 M.S.P.B. 143, 111 M.S.P.R. 649 (July 27, 2009). 6 1 Steverson improperly rejected the opinions of her treating doctors; and 2 (2) ALJ Steverson failed to provide clear and convincing reasons for 3 finding her to be not credible. 4 however, the Court cannot determine whether ALJ Steverson appropriately 5 assessed plaintiff s RFC or credibility, because ALJ Steverson failed to 6 give specific and legitimate reasons for rejecting the opinions of 7 plaintiff s treating doctors. For the reasons set forth below, 8 9 It is the responsibility of the ALJ to analyze evidence and resolve 10 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 11 (9th Cir. 1989). 12 assessing a social security claim, [g]enerally, a treating physician s 13 opinion carries more weight than an examining physician s, and an 14 examining physician s opinion carries more weight than a reviewing 15 physician s. 16 2001); see also 20 C.F.R. § 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 17 18 The opinions of treating physicians are entitled to the greatest 19 weight, because the treating physician is hired to cure and has a better 20 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 21 a treating physician s opinion is not contradicted by another physician, 22 it may be rejected only for clear and convincing reasons. 23 Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted 24 by another doctor, a treating physician s opinion may only be rejected 25 if the ALJ provides specific and legitimate reasons supported by 26 substantial evidence in the record. 27 [w]hen a treating physician s opinion is contradicted . . . , the ALJ 28 must assess its persuasiveness in light of specified factors, including 7 Id. Lester v. It is well established that 1 the length of the treatment relationship and the frequency of 2 examination; the nature and extent of the treatment relationship; and 3 the treating opinion s consistency with the record as a whole. 4 Aranda v. Comm r SSA, 405 Fed. Appx. 139, 141 (9th Cir. 2010)(quoting 5 Orn, 495 F.3d at 631). 6 7 The opinion of a nonexamining physician cannot by itself 8 constitute substantial evidence that justifies the rejection of the 9 opinion of . . . a treating physician. Lester, 81 F.3d at 831; see 10 also Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding 11 that the nonexamining physician s opinion with nothing more did not 12 constitute substantial evidence). 13 claimant s treating physician is contradicted, and the opinion of a 14 nontreating source is based on independent clinical findings that differ 15 from those of the treating physician, the opinion of the nontreating 16 source may itself be substantial evidence. 17 Independent clinical findings include (1) diagnoses that differ from 18 those offered by another physician and that are supported by substantial 19 evidence, or (2) findings based on objective medical tests that the 20 treating physician has not herself considered. 21 (internal citations omitted). However, [w]here the opinion of the Andrews, 53 F.3d at 1041. Orn, 495 F.3d at 632 22 A. 23 Nontreating Physicians 24 25 On October 3, 2006, plaintiff was seen by Rocely Ella-Tamayo, M.D., 26 a board eligible internist, for a complete internal medicine evaluation. 27 (A.R. 28 hypertension. 139-43.) Dr. Tamayo (A.R. 143.) diagnosed plaintiff with lupus and In pertinent part, Dr. Tamayo assessed 8 1 plaintiff s functional capacity as follows: 2 3 [plaintiff] is restricted in pushing, pulling, lifting, and 4 carrying to about 20 pounds occasionally, and about 10 pounds 5 frequently 6 unrestricted. In terms of standing and walking [plaintiff] is 7 able to stand and walk 6 hours out of an 8-hour workday with 8 normal breaks. 9 There is no functional impairment observed on both hands. because of her lupus condition. Sitting is She is able to kneel and squat occasionally. 10 11 (Id.) 12 13 On October 16, 2006, based upon a review of Dr. Tamayo s evaluation 14 and plaintiff s other medical records from 2006, state agency reviewing 15 physician M. E. Bayer, M.D., diagnosed plaintiff with systemic lupus 16 erythmatosus and hypertension. 17 lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit, 18 stand, and/or walk six hours in an eight-hour workday; and could 19 push/pull without limitation. 20 were no established postural, manipulative, visual, communicative, 21 and/or environmental limitations. Dr. Bayer opined that plaintiff could: (A.R. 152.) Dr. Bayer noted that there (A.R. 153-55.) 22 23 B. Treating Physicians 24 25 On August 31, 2006, plaintiff s treating physician Amy Starr, M.D., 26 a pediatric rheumatalogist, completed a musculoskeletal evaluation of 27 plaintiff. 28 plaintiff has been diagnosed with systemic lupus and her symptoms began (A.R. 98-100.) In her evaluation, Dr. Starr indicated that 9 1 in January 2005.3 2 plaintiff 3 occasional swelling/effusion in her hands and right shoulder.4 4 Although 5 abnormalities, she did note that plaintiff has less stamina but can 6 walk 1-2 blocks. 7 lifelong disease with a high risk of relapse [and] renal failure. 8 (A.R. 100.) has Dr. a (A.R. 98.) full Starr range did not Dr. Starr further indicated that, while of motion note any today, other plaintiff limitations has had (Id.) and/or (A.R. 99.) She also noted that plaintiff has a 9 10 In a November 9, 2006 progress note, Dr. Starr noted that, since 11 plaintiff s last appointment, plaintiff reported having aches in her 12 knees, ankles, hands, and joints, but no real swelling. 13 physical examination of plaintiff was normal, and plaintiff was assessed 14 with stable systemic lupus. (A.R. 235-36.) 15 progress note, Dr. Starr noted plaintiff s reports of, inter alia, 16 [l]eft knee grinding in cold weather, aching in knees, hands and 17 elbows, and [s]ome feet swelling [and] hand swelling. 18 Dr. Starr s physical examination of plaintiff was normal, and plaintiff 19 was again assessed as having stable systemic lupus. (A.R. 234.) A In a January 24, 2007 (A.R. 231.) (A.R. 232.) 20 21 22 23 24 25 26 27 28 3 Dr. Starr also indicated that plaintiff has had arthritis, cytopenia, renal disease, mouth ulcers, pleuritis[, and] pericarditis. (A.R. 100.) 4 Dr. Starr s prior treatment notes are consistent with her assessment that plaintiff suffers from occasional swelling/effusion. (A.R. 108 (10/18/05 - hands and feet swelling; elbows and knees hurting; knees worse in [the morning] ; joints - normal); A.R. 107 (12/28/05 less joint swelling [and] pain ; joints - normal); A.R. 106 (02/27/06 Hands swelling x 1-2 days ; knees swell on [and] off ; joints normal, including hands and knees); A.R. 105 (03/29/06 - foot swelling less ; lip [and] hands swollen ; swelling dorsum of both hands plus lips ); A.R. 104 (04/20/06 - swelling + rash ; joints - normal); A.R. 103 (06/26/06 - joint pain and swelling; morning stiffness for 1-2 hours).) 10 1 In addition, in an April 23, 2007 follow-up examination, Dr. Starr 2 noted that plaintiff had swelling in her feet and hands a week before 3 the examination as well as aches in her knees. 4 noted that plaintiff s systemic lupus was stable, but her arthritis 5 medication needed to be increased. 6 transferring treatment of plaintiff to Dr. Gerald Dale Levy, M.D., an 7 adult rheumatologist. 8 however, Dr. Starr noted in her April 26, and April 30, 2007 addended 9 treatment notes that plaintiff s lab tests are worsening. (A.R. 228.) 10 Accordingly, Dr. Starr increased plaintiff s medications and noted that 11 plaintiff would need to schedule a rheumatology appointment in one month 12 and may need [a] nephrology consult and renal biopsy. (A.R. 226.) Dr. Starr Dr. Starr noted that she was Before transferring plaintiff to Dr. Levy, (Id.) 13 14 On May 8, 2007, plaintiff was seen by Dr. Levy. (A.R. 209-11.) 15 Dr. Levy indicated that plaintiff has had systemic lupus erthmatosis for 16 two years. 17 a flare up two weeks ago and is doing a little better . . . with a 18 change 19 examination of plaintiff, which revealed normal findings except for 20 tenderness in her hips. 21 plaintiff has mild proteinuria. in (A.R. 209.) Dr. Levy further indicated that plaintiff had med[ication]s. (Id.) Dr. Levy (A.R. 210-11.) conducted a physical Dr. Levy also noted that (A.R. 211.) 22 23 On July 3, August 21, and October 16, 2007, plaintiff was again 24 seen by Dr. Levy. On all three occasions Dr. Levy reviewed plaintiff s 25 lab work and assessed her as having systemic lupus erythematosus. (A.R. 26 158-59, 177-78, 188-90.) On July 3, 2007, Dr. Levy prescribed Cellcept 27 for plaintiff; he later noted that Cellcept was prescribed to treat 28 plaintiff s continued lupus activity. 11 In his August 21, 2007 treatment 1 note, Dr. Levy indicated that plaintiff feels better and is less 2 stiff. 3 [in her] left wrist, a dry patch [on her] left deltoid, and acne on 4 her face. 5 noted that plaintiff has a rash over her left upper arm that has 6 increased in size. He noted, however, that plaintiff has a knot medial aspect (A.R. 177.) In his October 16, 2007 examination, Dr. Levy (A.R. 159.) 7 8 9 In a letter January 28, 2008, Dr. Levy detailed his treatment of plaintiff. (A.R. 245-46.) In pertinent part, he noted that plaintiff 10 has had systemic lupus erythmatosus for 2 years with active disease, 11 requiring aggressive medications. 5 12 that, beginning on July 3, 2007, plaintiff was started on Cellcept 13 [myophelelate] due to continued Lupus activity. 14 stated that when plaintiff was last seen on January 21, 2008, . . . she 15 remain[ed] 16 Methotrexate and [P]laquenil are all necessary to prevent further 17 deterioration of her condition. 18 that [b]ecause of continued fatigue, joint aches[,] and [plaintiff s] 19 medication regimen[,] regular activities of daily living [are] quite 20 difficult [for plaintiff]. with active (A.R. 245.) disease. [Her (Id.) Dr. Levy also noted (A.R. 246.) medications of] Dr Levy Cellcept, Significantly, Dr. Levy noted (Id.) 21 22 Similarly, in a February 28, 2008 letter, Dr. Starr detailed her 23 treatment of plaintiff. (A.R. 250.) Dr. Starr noted that plaintiff was 24 under her care from March 2005, until April 2007, for severe systemic 25 lupus erthematosus. 26 disease, developed (Id.) She noted that plaintiff had severe renal cardiomegaly, and developed arthritis in 27 5 28 Dr. Levy indicated that plaintiff has been taking Prednisone, Plaquenil, Feldene, Methotrexate, and Lisinopril. (A.R. 245.) 12 1 Oct[ober] 2005. (Id.) 2 of plaintiff s last visit, she had very active disease including severe 3 renal disease with proteinuria, hematuria and casts in the urine, low 4 complement levels, elevated antiDNA levels and elevated inflammatory 5 markers. 6 of 7 Significantly, Dr. Starr also noted that plaintiff may also be limited 8 by her arthritis and cannot do any work that requires lifting or 9 standing for long periods of time. (Id.) progressive Dr. Starr further indicated that, at the time Dr. Starr noted that plaintiff has a very high risk renal failure over the next 10 years. (Id.) (Id.; emphasis added.) 10 11 C. Analysis 12 13 In his decision, ALJ Steverson gives controlling weight to the 14 opinion of state agency reviewing physician Dr. Bayer. In so doing, ALJ 15 Steverson expressly rejects the opinions of Drs. Starr and Levy, 16 plaintiff s 17 [plaintiff] has been unable to perform light exertional activities for 18 twelve months, because: 19 April 2007 suggest that [plaintiff s] lupus was fairly stable with 20 medications ; 21 deterioration toward the end of April 2007, her medical condition 22 appears to have improved after the middle of 2007"; and (3) their 23 opinions are contradicted by the findings of a consultative examiner 24 and a State Agency medical consultant, who indicated that [plaintiff] 25 retained the ability to perform light exertional activities. 26 11.) treating (2) doctors, to the extent they suggest that (1) progress notes through the middle of although [plaintiff] appears to have some (A.R. 27 28 ALJ Steverson s first two reasons for rejecting the opinions of 13 1 plaintiff s treating doctors are unpersuasive. 2 Steverson rejects the opinions of plaintiff s treating doctors, because, 3 despite 4 remained 5 contends, however, ALJ Steverson appears to improperly equate stability 6 with functionality. 7 doctors note that plaintiff s lupus is stable, both doctors indicate 8 that 9 medications. a period fairly plaintiff of deterioration stable and/or in 2007, improved. (Joint Stip. at 10.) has an active Significantly, plaintiff s As condition plaintiff properly While plaintiff s treating disease Dr. In his decision, ALJ which opined Levy requires that, aggressive because of 10 [plaintiff s] continued fatigue, joint aches[,] and medication regime[,] 11 regular activities of daily living are quite difficult [for plaintiff]. 12 (A.R. 246.) 13 work that requires lifting or standing for long period of time and may 14 also be limited by her arthritis. 15 notwithstanding the stability of plaintiff s lupus, plaintiff s doctors 16 opine that plaintiff will have functional limitations as a result of her 17 lupus, medication regimen, and, possibly, her arthritis. 18 the extent ALJ Steverson rejects the opinions of plaintiff s treating 19 doctors because plaintiff s condition has improved after the middle of 20 2007, ALJ Steverson s contention is belied by Dr. Levy s initial July 21 2007 prescription of Cellcept to treat plaintiff s continued Lupus 22 activity and his ongoing prescription of Cellcept and other medications 23 to prevent further deterioration of plaintiff s condition. As such, ALJ 24 Steverson s 25 rejecting the opinions of plaintiff s treating doctors. Similarly, Dr. Starr opined that plaintiff cannot do any reasoning cannot (A.R. 250.) constitute a In other words, legitimate Further, to reason for opinions of 26 27 28 ALJ Steverson s plaintiff s treating other doctors reason - to 14 for rejecting wit, that the their opinions are 1 contradicted by the nontreating sources - is also unavailing. As an 2 initial matter, the opinions of Drs. Tamayo and Bayer, the nontreating 3 physicians, pre-date all of Dr. Levy s treatment notes and testing, as 4 well as some of Dr. Starr s treatment notes and testing. Significantly, 5 the opinions of Drs. Tamayo and Bayer do not account for plaintiff s 6 period of deterioration or her medication regimen - a regimen which Dr. 7 Levy opined would contribute to plaintiff s difficulties in completing 8 daily activities. 9 Bayer are not based on a complete review of the medical record, it is 10 unclear whether their opinions, in fact, contradict the opinions of 11 plaintiff s treating doctors or, instead, reflect plaintiff s abilities 12 at an earlier period of time. 13 opinion of Dr. Bayer - the nontreating, nonexamining physician to whom 14 the ALJ gives controlling weight -- contradicts the opinions of Drs. 15 Starr and Levy, that fact, alone, cannot constitute substantial evidence 16 which justifies the rejection of the opinions of plaintiff s treating 17 physicians. Lester, 81 F.3d at 831. As such, ALJ Steverson s reasoning 18 cannot constitute a specific and legitimate reason for rejecting the 19 opinions of plaintiff s treating doctors. Accordingly, because the opinions of Drs. Tamayo and Further, even assuming arguendo that the 20 21 Therefore, for the aforementioned reasons, ALJ Steverson erred by 22 failing to give specific and legitimate reasons for rejecting the 23 opinions of Drs. Starr and Levy regarding plaintiff s limitations and 24 restrictions. 25 considered properly, and should the ALJ elect to give them no weight and 26 instead to give controlling weight to the opinion of a nonexamining 27 state agency physician, the ALJ should set forth specific and legitimate 28 reasons for so doing. On remand, the opinions of Drs. Levy and Starr should be After so doing, the ALJ should consider what 15 1 impact, if any, this has on the assessments of plaintiff s RFC and 2 credibility.6 3 6 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In finding plaintiff to be not entirely credible, ALJ Steverson stated that the objective medical evidence does not document medical findings consistent with the extreme limitation alleged by [plaintiff] and her mother. (A.R. 13.) By way of example, ALJ Steverson notes that plaintiff s lupus has been reported to be stable without signs of swelling, pain, or restricted motion, and progress notes do not document persistent gait abnormalities that would require on-going use of a cane. (Id.) ALJ Steverson further notes that plaintiff s alleged limitations in daily activities cannot be objectively verified with any reasonable degree of certainty, and, even if they could, it is difficult to attribute that degree of limitation to [plaintiff] s medical condition, as opposed to other reasons, in view of the relatively weak medical evidence and other factors discussed in this decision. (Id.) As an initial matter, the failure of the medical evidence to support the extent of plaintiff s subjective symptoms cannot, by itself, constitute a clear and convincing reason for discrediting plaintiff s testimony. See Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988); see also, Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991)(noting that [i]f an adjudicator could reject a claim of disability simply because [plaintiff] fails to produce evidence supporting the severity of the pain there would be no reason for an adjudicator to consider anything other than medical findings ). Accordingly, ALJ Steverson s finding that the objective evidence does not support the extent and/or degree of plaintiff s alleged limitations in daily living cannot, by itself, constitute a clear and convincing reason for discrediting plaintiff s testimony. To the extent ALJ Steverson discredits plaintiff because her lupus has been reported as stable, ALJ Steverson s reasoning is unpersuasive, because, as discussed in detail supra, he appears to conflate stability with functionality. In addition, contrary to ALJ Steverson s contention, plaintiff s treating notes do contain reports of swelling, pain, and restricted motion. Further, to the extent ALJ Steverson discredits plaintiff because her progress notes do not document persistent gait abnormalities that would require on-going use of a cane, ALJ Steverson s reasoning is unavailing. The record indicates that sometimes [plaintiff s] knees ache and [she] need[s] to use a cane. (A.R. 64.) Plaintiff does not allege that she has persistent gait abnormalities, and therefore, the fact that the record does not contain such reports cannot constitute a clear and convincing reason for rejecting plaintiff s testimony. ALJ Steverson s last ground for discrediting plaintiff - to wit, that in view of the relatively weak medical record, it is difficult to attribute [plaintiff s alleged] degree of limitation to her medical condition, as opposed to other reasons - is also not clear and convincing. The record contains opinions from plaintiff s treating doctors, both specialists in the field of rheumatology, who opine that 16 1 III. Remand Is Required. 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 6 useful purpose would be served by further administrative proceedings, or 7 where the record has been fully developed, it is appropriate to exercise 8 this discretion to direct an immediate award of benefits. 9 ( [T]he decision of whether to remand for further proceedings turns upon Where no Id. at 1179 10 the likely utility of such proceedings. ). However, where there are 11 outstanding issues that must be resolved before a determination of 12 disability can be made, and it is not clear from the record that the ALJ 13 would be required to find the claimant disabled if all the evidence were 14 properly evaluated, remand is appropriate. Id. at 1179-81. 15 16 Remand is the appropriate remedy to allow the ALJ the opportunity 17 to remedy the above-mentioned deficiencies and errors.7 18 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for See, e.g., 19 20 21 22 23 24 25 26 27 28 plaintiff s medical conditions result in limitations in her daily activities. The ALJ needs to consider these opinions properly and, to the extent the ALJ finds the record to be deficient, the record should be developed further. 7 Plaintiff has requested that this Court credit the testimony of [plaintiff] as well as the opinions of Dr. Levy and Dr. Starr. (Joint Stip. at 12.) However, because there are outstanding issues that need to be resolved before a proper disability determination can be made, and it is unclear whether the evidence, if credited as true, would require a finding of disability, the Court declines to credit the testimony of plaintiff and the opinions of plaintiff s treating doctors as true. Vasquez v. Astrue, 547 F.3d 1101, 1106 (9th Cir. 2008); see Smolen v. Chater, 80 F.3d 1273, 1292 (remanding for an award of benefits when the ALJ improperly rejected the physicians opinions, plaintiff s own symptom testimony, and lay witness testimony, and it was clear that a finding of disability was required after properly crediting this evidence as true). 17 1 further proceedings is appropriate if enhancement of the record would be 2 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 3 (remand appropriate to remedy defects in the record). 4 ALJ must correct the above-mentioned deficiencies and errors and further 5 develop the record as appropriate. On remand, the 6 CONCLUSION 7 8 9 Accordingly, for the reasons stated above, IT IS ORDERED that the 10 decision of the Commissioner is REVERSED, and this case is REMANDED for 11 further proceedings consistent with this Memorandum Opinion and Order. 12 13 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 14 copies of this Memorandum Opinion and Order and the Judgment on counsel 15 for plaintiff and for defendant. 16 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: November 17, 2011 19 20 21 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 18

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