Kimberley Petroski v. Michael J Astrue, No. 2:2011cv02569 - Document 21 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. Accordingly, the decision of the Commissioner is reversed; and this action is remanded for further proceedings consistent with this Memorandum Opinion. (twdb)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 KIMBERLY PETROSKI, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-02569-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Kimberly Petroski seeks judicial review of the 18 Commissioner s denial of her application for disability insurance 19 benefits ( DIB ) and supplemental security income benefits. For the 20 reasons discussed below, the Commissioner s decision is reversed, 21 and this action is remanded for further proceedings. 22 23 I. BACKGROUND 24 Plaintiff was born on August 17, 1961. (AR at 65). She has 25 relevant work experience as an account manager and sales manager at 26 a furniture company. (AR at 103). She filed an application for DIB 27 as well as an application for supplemental security income benefits 28 on August 10, 2007, alleging disability beginning July 24, 2006, 1 1 due to cat scratch disease and flu-like symptoms. (AR at 59, 67). 2 The Social Security Administration denied Plaintiff s application 3 initially on December 5, 2007. (AR at 59, 67-71). 4 An de novo hearing was held before Administrative Law Judge 5 Dale A. Garwal (the ALJ ) on July 15, 2009. (AR at 59). Plaintiff, 6 who was represented by counsel, testified at the hearing. (AR at 7 59). The ALJ issued a decision on September 29, 2009, denying 8 Plaintiff s application. (AR at 59-66). The ALJ found that although 9 Plaintiff suffers from a history of chronic fatigue syndrome 10 ( CFS ) and is unable to perform her past relevant work, she has 11 the residual functional capacity ( RFC ) to perform a full range of 12 sedentary work and therefore is able to perform jobs that exist in 13 significant numbers in the national economy. (AR at 61-66). The 14 Appeals Council denied review on February 14, 2011 (AR at 3-5). 15 Plaintiff commenced this action for judicial review on March 16 18, 2011. The parties filed a joint statement of disputed issues 17 ( Joint Stipulation ) on November 21, 2011. Plaintiff contends the 18 ALJ failed to give appropriate weight to the opinion of her 19 treating physician, improperly evaluated her credibility, and erred 20 in finding that she can perform other work. (Joint Stipulation at 21 2, 16). Plaintiff seeks remand for payment of benefits or, in the 22 alternative, remand for further administrative proceedings (Joint 23 Stipulation at 18-19). The Defendant requests that the ALJ s 24 decision be affirmed or, if the Court finds that the ALJ committed 25 reversible error, that the Court remand for further administrative 26 proceedings. (Joint Stipulation at 19). 27 // 28 // 2 1 II. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s or 4 ALJ s decision must be upheld unless the ALJ s findings are based 5 on legal error or are not supported by substantial evidence in the 6 record as a whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 7 1990); 8 Substantial evidence means such evidence as a reasonable person 9 might accept as adequate to support a conclusion. Richardson v. 10 Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 11 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less 12 than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 13 882 (9th Cir. 2006). To determine whether substantial evidence 14 supports 15 administrative record as a whole, weighing both the evidence that 16 supports and the evidence that detracts from the Commissioner s 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). 18 If the evidence can support either affirming or reversing the 19 ALJ s conclusion, the reviewing court may not substitute its 20 judgment for that of the ALJ. Robbins, 466 F.3d at 882. Parra a v. Astrue, finding, the 481 F.3d 742, reviewing 746 court (9th must Cir. 2007). review the 21 22 III. 23 A. The ALJ Failed to Give Appropriate Weight to the Treating 24 Physician s Opinion DISCUSSION 25 Plaintiff contends that the ALJ improperly rejected the work- 26 related limitations assessed by her treating physician in finding 27 that Plaintiff could perform a full range of sedentary work. 28 // 3 1 The Commissioner is directed to weigh medical opinions based 2 in part on their source, 3 treating, examining, or non-examining professionals. Lester v. 4 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Generally, more weight 5 is given to the opinion of a treating professional, who has a 6 greater 7 individual, than the opinion of a non-treating professional. See 8 id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). opportunity to specifically, know and whether observe the proffered patient as by an 9 The Commissioner must also consider whether a medical opinion 10 is supported by clinical findings and is contradicted by other 11 medical 12 uncontradicted 13 professional only for clear and convincing reasons supported by 14 substantial evidence in the record. See Lester, 81 F.3d at 831. A 15 contradicted opinion of a treating or examining professional may be 16 rejected only for specific and legitimate reasons supported by 17 substantial evidence. 18 professional s 19 professional s opinion, which is supported by different independent 20 clinical findings, the Commissioner may resolve the conflict by 21 relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041 22 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d 625, 632 (9th 23 Cir. 2007) (ALJ may reject opinion of treating physician in favor 24 of examining physician whose opinion rests of independent clinical 25 findings). evidence of record. opinion of The a Commissioner treating or may reject examining the medical Lester, 81 F.3d at 830. If a treating opinion is contradicted by an examining 26 The record indicates that Plaintiff was seen by her treating 27 physician, Gary J. Lawson, M.D., multiple times for various reasons 28 between July 2006 and June 2008. (AR at 216-42). Dr. Lawson 4 1 diagnosed Plaintiff with CFS, and the treating records contain 2 numerous notations of chronic fatigue and other symptoms. On July 3 14, 4 Plaintiff has CFS, is incapable of tolerating even a low stress 5 job, can only sit or stand for thirty minutes continuously, and 6 would likely be absent from work more than four times a month as a 7 result of the impairments or treatment. (AR at 272). 2009, Dr. Lawson completed a questionnaire stating that 8 The ALJ rejected Dr. Lawson s opinion as to Plaintiff s RFC, 9 but failed to state adequate reasons for doing so. (AR at 63-64). 10 First, the ALJ took issue with the fact that the Plaintiff s 11 symptoms were subjective, noting that [a]pparently based purely on 12 the claimant s subjective symptoms Dr. Lawson diagnosed chronic 13 fatigue syndrome, and that Dr. Lawson appears to have taken 14 claimant s statements at face value. (AR at 63, 65). It is true 15 that in general, an ALJ need not accept the opinion of any 16 physician, including a treating physician, if that opinion is 17 brief, 18 findings. 19 Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (noting that 20 an ALJ may discredit treating physicians opinions that are 21 conclusory, brief, and unsupported by the record as a whole, ... or 22 by objective medical findings ); see also Tonapetyan v. Halter, 242 23 F.3d 1144, 1149 (9th Cir. 2001). However, rejecting Dr. Lawson s 24 opinion on the premise that it was based on plaintiff's subjective 25 complaints is improper in the context of a CFS case. Reddick v. 26 Chater, 157 F.3d 715, 725 26 (9th Cir. 1998). As the Ninth Circuit 27 explained, 28 persistent or relapsing fatigue lasting six or more consecutive conclusory, See and Batson [c]hronic inadequately v. supported Commissioner fatigue is 5 of defined by clinical Social Security as self-reported 1 months. Id. at 726 (emphasis in original) (quoting Centers for 2 Disease Control, The Chronic Fatigue Syndrome: A Comprehensive 3 Approach to its Definition and Study, 121 Annals of Internal 4 Medicine 954 (1994)). Although CFS is accompanied by symptoms such 5 as body aches, low-grade fevers, memory problems, headaches, and 6 extended 7 necessarily 8 exclusion, or ruling out other possible illnesses. Reddick, 157 9 F.3d at 726. flu-like symptoms self-reported. ... The the final presence diagnosis of fatigue is made by is 10 Of course [a]n ALJ may reject a treating physician's opinion 11 if it is based to a large extent on a claimant's self-reports that 12 have been properly discounted as incredible. Tommasetti v. Astrue, 13 533 F.3d 1035, 1041 (9th Cir. 2008) (internal citations omitted) 14 (emphasis added). However, as will be discussed later in this 15 opinion, the ALJ improperly discounted plaintiff's subjective 16 complaints regarding the nature and extent of her functional 17 limitations. Given the difficult nature of diagnosing CFS, to the 18 extent that the ALJ s rejection of Dr. Lawson s opinion was based 19 on 20 improper. See Reddick, 157 F.3d at 726; see also Cook v. Liberty 21 Life Assur. Co. of Boston, 320 F.3d 11, 21 (1st Cir. 2003) 22 (requiring objective documentation of CFS is unreasonable). a lack of objective medical evidence, that rejection was 23 In rejecting Dr. Lawson s opinion, the ALJ also relied on the 24 opinion of Lakshmi Sadasivan, M.D., an internal medicine consultant 25 who evaluated Plaintiff. (AR at 63). Dr. Sadasivan reviewed only 26 two 27 consultation report from October 28, 2005, and a report from her 28 optometrist dated September 14, 2007. (AR at 208). She examined items in Plaintiff s record: 6 the infectious disease 1 Plaintiff on November 21, 2007 and did not find any significant 2 physical or neurological problems (AR at 209-12). Based on her 3 evaluation, Dr. Sadasivan concluded that Plaintiff would be able to 4 lift or carry 50 pounds occasionally and 25 pounds frequently, 5 could stand, walk, or sit for 6 hours in an eight-hour day, and 6 would have no postural, manipulative, visual, communicative, or 7 environmental limitations. (AR at 212). 8 The opinion of Dr. Sadasivan does not constitute a proper 9 basis for rejecting Dr. Lawson s treating source opinion. It 10 appears 11 diagnosis of CFS or given access to any of the medical records 12 documenting it. As noted, there are no objective signs or tests to 13 confirm CFS, and thus it is unremarkable that Dr. Sadasivan s tests 14 did not reveal significant abnormalities. Finally, given that the 15 ALJ found that Plaintiff did suffer from CFS and disputed only the 16 severity of its impact, it was not logical for him to rely on a 17 medical evaluation that contained no mention of CFS to assess its 18 severity. 19 physician s 20 supported by substantial evidence. that Dr. Thus, Sadasivan the ALJ s assessment over was not decision the apprised to treating credit of Plaintiff s the examining physician s was not 21 The ALJ also rejected Dr. Lawson s opinion because he found 22 that Dr. Lawson had alleged that Plaintiff suffered from certain 23 symptoms that were not consistently indicated in his treating 24 records. (AR at 63). These symptoms included short-term memory or 25 concentration impairment, sore throat, tender lymph nodes, muscle 26 pain, joint pain, headaches, unrefreshing 27 28 7 sleep, and post- 1 exertional malaise.1 (AR at 63, 271). Nearly all of the treating 2 records, however, contain a notation of chronic fatigue, which 3 logically encompasses the symptoms underlying that diagnosis. (AR 4 at 218-29). Additionally, many of the records mention equivalent 5 symptoms such as body aches, and given that the referenced 6 symptoms were checked off on a standard form questionnaire, it is 7 unsurprising that the terms used in the treating records differ 8 from the language on the questionnaire. Moreover, many of the 9 notations contained in the treating records are illegible. Thus, to 10 the extent the ALJ questioned whether the relevant symptoms had 11 been consistently observed and documented by Dr. Lawson, he should 12 have inquired further. See, e.g., Smolen, 80 F.3d at 1288. 13 Next, the ALJ found Dr. Lawson s contention that emotional 14 factors did not contribute to Plaintiff s symptoms of CFS to be 15 contradicted 16 depression and anxiety. (AR at 63-64). Yet these positions are not 17 inconsistent, as it is entirely possible that while Plaintiff did 18 suffer from depression and anxiety, these conditions did not 19 contribute to Plaintiff s CFS symptoms. To the extent the ALJ was 20 concerned that there could be a contradiction or that the symptoms 21 had a psychological overlay, he should have contacted Dr. Lawson to 22 inquire further as set forth in 20 C.F.R. 404.1512(e)(1). by the records stating that the Plaintiff had 23 Finally, the ALJ observed that all of the reports for state 24 unemployment found that the claimant was capable of performing her 25 26 1 27 28 These symptoms appear on the CFS Residual Functional Capacity Questionnaire, completed by Dr. Lawson on July 14, 2009, and are taken from Social Security Ruling 99-2p, which identifies the symptoms necessary for a diagnosis of CFS. 8 1 regular or customary work within one month. (AR at 64). However, 2 this mischaracterizes the eight reports, which span the time period 3 from December 2005 to April 2007. The reports contain only an 4 estimated date for when the Plaintiff would be able to perform her 5 customary work. While five of the reports have an estimated date of 6 within one month, two of the reports have lengthier estimates. (AR 7 at 235-41). Looking at the reports as a whole, it is clear that 8 Plaintiff did not in fact improve within the estimated periods, but 9 instead 10 was consistently found to be unable to perform her customary work for the immediate future. 11 Accordingly, none of the ALJ s stated reasons for rejecting 12 Dr. Lawson s opinion are supported by substantial evidence in the 13 record. 14 B. The ALJ Improperly Evaluated Plaintiff s Credibility 15 Plaintiff contends that the ALJ failed to properly evaluate 16 her credibility in determining that she is capable of performing at 17 least a full range of sedentary work. At the hearing, Plaintiff 18 testified that she suffers from CFS, and that her symptoms began 19 when she was scratched by a cat. (AR at 62). She said that she is 20 constantly tired and sleeps 16 to 18 hours per day. She also 21 experiences shaking, fevers, body aches, diarrhea, headaches, 22 difficulty concentrating, and memory lapse. (AR at 62). She feels 23 that on a bad day she can stand for about five minutes, sit for 24 about 15 minutes, and lift no more than a couple of pounds, and 25 that on a good day she could lift about 15 pounds. (AR at 62). Her 26 symptoms vary and she occasionally has several good days in a 27 month. She stated that despite her fatigue, she is able to perform 28 at least occasional light meal preparation and can take care of her 9 1 pets, do light housework, drive a car, shop, take care of personal 2 finances, and generally care for herself. (AR at 65). 3 To determine whether a claimant's testimony about subjective 4 pain or symptoms is credible, an ALJ must engage in a two-step 5 analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 6 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 7 2007)). First, the ALJ must determine whether the claimant has 8 presented objective medical evidence of an underlying impairment 9 which could reasonably be expected to produce the alleged pain or 10 other symptoms. Lingenfelter, 11 claimant produces objective medical evidence of an underlying 12 impairment, an adjudicator may not reject a claimant's subjective 13 complaints based solely on a lack of objective medical evidence to 14 fully 15 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the 16 extent that an individual's claims of functional limitations and 17 restrictions due to symptoms are reasonably consistent with the 18 objective medical evidence and other evidence in the case, the 19 claimant's allegations will be credited. SSR 96-7p, 1996 WL 374186 20 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).2 corroborate the alleged 504 F.3d severity at of 1036. pain." "[O]nce the Bunnell v. 21 Unless there is affirmative evidence showing that the claimant 22 is malingering, the ALJ must provide specific, clear and convincing 23 reasons for discrediting a claimant's complaints. Robbins, 466 F.3d 24 25 26 27 28 2 The Secretary issues Social Security Rulings to clarify the Secretary's regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary's interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 10 1 at 883. General findings are insufficient; rather, the ALJ must 2 identify 3 undermines the claimant's complaints. Reddick, 157 F.3d at 722 4 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The 5 ALJ must consider a claimant's work record, observations of medical 6 providers 7 limitations, aggravating factors, 8 by symptoms, effects of medication, and the claimant's daily 9 activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 10 1996). The ALJ may also consider an unexplained failure to seek 11 treatment or follow a prescribed course of treatment and employ 12 other ordinary techniques of credibility evaluation. Id. (citations 13 omitted). 14 what Here, and the testimony third ALJ is not parties credible with concluded and knowledge what of evidence claimant's functional restrictions caused that Plaintiff s medically 15 determinable impairments could reasonably be expected to cause some 16 of the alleged symptoms. (AR at 17). However, the ALJ rejected as 17 not credible Plaintiff's statements concerning the intensity, 18 persistence and limiting effects of these symptoms to the extent 19 they are inconsistent with the RFC allowing for a full range of 20 sedentary work. (AR at 64). Because there was no evidence of 21 malingering, the ALJ was required to provide clear and convincing 22 reasons for rejecting this testimony. 23 The ALJ listed multiple reasons for rejecting Plaintiff s 24 testimony. First, the ALJ found that the medical evidence submitted 25 failed to document that Plaintiff has consistently experienced the 26 symptoms generally associated with CFS as specified in Social 27 Security Ruling 99-2p. (AR at 65). As discussed above, however, Dr. 28 Lawson s records appear to document Plaintiff s complaints of 11 1 constant fatigue and related symptoms. (AR at 218-29). 2 Next, the ALJ stated that Plaintiff s contention that her 3 chronic fatigue and other symptoms began with a cat scratch was 4 thoroughly discredited by the infectious disease specialist who 5 briefly 6 mischaracterizes 7 consultation with Plaintiff dated October 28, 2005, the specialist, 8 Jon F. Willen, M.D., did note that cat-scratch disease was not 9 documented serologically. (AR at 142). Nevertheless, in the same 10 sentence he added the caveat that there are false negative 11 serologic studies. Additionally, in an assessment of Plaintiff 12 bearing the same date, Dr. Willen noted that he suspect[ed] an 13 acute viral process; most likely would be cat-scratch disease. (AR 14 at 141) (emphasis added). After a reevaluation dated August 15, 15 2006, Dr. Willen further opined that Plaintiff had a form of CFS, 16 probably initiated by an infectious agent, most likely viral. (AR 17 at 148). treated her. the (AR at evidence. 65). In However, a letter this statement regarding his 18 Plaintiff did not need to demonstrate the cause of her 19 disability in order to prevail on her disability claim. Rather, the 20 issue of cause is relevant only to the extent that it bears on her 21 credibility. Given the evidence suggesting Plaintiff had suffered 22 a viral process that was likely cat-scratch disease and that a 23 viral infectious agent initiated her CFS, Plaintiff s contention 24 that a cat scratch caused her CFS does not provide a convincing 25 reason for finding her testimony not credible. She was under no 26 obligation to provide more definitive proof that a cat scratch in 27 fact caused her CFS. 28 The ALJ also noted that while claimant has allergic rhinitis, 12 1 there is no indication that it currently affects her functioning, 2 and that her contention that she had extremely poor vision was 3 proven to be untrue by her optometrist. (AR at 65). As neither 4 rhinitis nor poor vision form the basis for Plaintiff s disability 5 claim, the ALJ s findings with respect to them are again relevant 6 only as to the issue of her credibility. It does not appear that 7 Plaintiff made any false or inconsistent statements with respect to 8 her rhinitis, and neither the ALJ nor Defendant has pointed out 9 any. Regarding her vision, the letter from her optometrist dated 10 September 14, 2007 11 complications, including an astigmatism and glasses and contact 12 lenses that were over-corrected, but that these issues were 13 correctable. 14 Plaintiff s credibility; rather, they demonstrate that at the time 15 she was seen by an optometrist she was indeed suffering from vision 16 complications. Morever, there is no evidence that Plaintiff s 17 vision issues were ever resolved. (AR indicated at 195). that These Plaintiff findings do had not several undermine 18 Next, the ALJ discredited Plaintiff s symptom testimony based 19 on her daily activities. A disability claimant's daily activities 20 "may be grounds for an adverse credibility finding if a claimant is 21 able to spend a substantial part of his day engaged in pursuits 22 involving 23 transferable to a work setting," Orn v. Astrue, 495 F.3d 625, 639 24 (9th Cir. 2007) (internal quotation marks omitted). Here, the ALJ 25 found that [a]lthough the claimant has alleged that she is 26 extremely fatigued she has admitted to being able to perform at 27 least occasional light meal preparation and that she can take care 28 of her pets (including cats), do light housework, drive a car, the performance of 13 physical functions that are 1 shop, take care of her own personal finances, and take care of her 2 own self-care activities. (AR at 65). These limited activities, 3 however, are not inconsistent with Plaintiff s testimony regarding 4 her abilities and the fact that she is only awake between six and 5 eight 6 activities are extremely limited in duration and are generally only 7 performed when the Plaintiff feels up to it, and that she has 8 regular help from her mother for tasks such as feeding the animals. 9 (AR at 118-25). In short, the fact that Plaintiff is not utterly 10 incapacitated does not prevent a finding of disability nor render 11 her claim that she suffers from CFS not credible. See Vertigan v. 12 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (citing Fair v. Bowen, 13 885 F.2d 597, 603 (9th Cir. 1989) (One does not need to be utterly 14 incapacitated in order to be disabled). hours a day. Moreover, the record clarifies that the 15 The ALJ further stated that [a]lthough there appears to be an 16 emotional component to the claimant s chronic fatigue it is notable 17 that she was never referred for any formal mental health care to 18 explore this issue. (AR at 65). As discussed in the prior section, 19 however, it is not clear that emotional factors were a component of 20 Plaintiff s CFS, rather than a separate issue. Additionally, the 21 fact that Plaintiff was not referred for any formal mental health 22 care is not dispositive of whether Plaintiff suffered from mental 23 health issues. See, e.g., Regennitter v. Comm r, 166 F.3d 1294, 24 1299 (9th Cir. 1999) ( it is questionable practice to chastize one 25 with a mental impairment for the exercise of poor judgement in 26 seeking rehabilitation )(internal quotations omitted). The record 27 contains other evidence demonstrating that Plaintiff suffered from 28 mental health issues, including reports from her treating physician 14 1 noting that she suffered from depression, (AR at 222, 224, 236), 2 and 3 antidepressant (AR at 222, 225-27). 4 the fact Finally, that the she ALJ was found treated that with [d]espite Wellbutrin, the an claimant s 5 contention that she has to sleep 16 to 18 hours a day she has 6 clearly failed to establish any medically determinable condition 7 which would support this. (AR at 65). Yet the ALJ had already 8 concluded that Plaintiff s CFS was a severe impairment and that 9 [t]he severity of this condition is established by the objective 10 medical evidence, the opinions of the treating physicians and 11 consultative examiners, and other evidence.... . (AR at 61). In 12 light of those conclusions, the ALJ was not entitled to discredit 13 Plaintiff s testimony merely because objective evidence did not 14 corroborate the severity of the symptoms. Reddick, 157 F.3d at 722; 15 Bunnell, 947 F.2d at 345; Light v. Soc. Sec. Admin, 119 F.3d 789 16 (9th Cir. 1997) ( [B]ecause a claimant need not present clinical or 17 diagnostic evidence to support the severity of his pain...a finding 18 that the claimant lacks credibility cannot be premised wholly on a 19 lack of medical support for the severity of his pain. ) (internal 20 citation omitted). 21 In sum, the principal reasons upon which the ALJ based his 22 decision 23 improper or unsupported by substantial evidence in the record. 24 // 25 // 26 // 27 // 28 // to reject Plaintiff s 15 testimony were either legally 1 2 IV. Conclusion As a general rule, remand is warranted where additional 3 administrative proceedings could remedy defects in the 4 Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 5 (9th Cir. 2000). In this case, remand is appropriate to properly 6 consider Dr. Lawson s opinion and Plaintiff s testimony, and to 7 fully develop the record.3 8 Accordingly, the decision of the Commissioner is reversed; and 9 this action is remanded for further proceedings consistent with 10 this Memorandum Opinion. 11 12 Dated: December 8, 2011 13 14 ______________________________ Marc L. Goldman United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 3 Because the record is not sufficiently developed to support a determination of disability without further proceedings, the Court will not consider the third issue raised by Plaintiff--whether the ALJ erred in finding the plaintiff can perform other work. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate). The Court recommends, however, that the ALJ consider all of Plaintiff s arguments when determining the merits of her case on remand. Testimony from a vocational expert may also be necessary in light of the evidence. 28 16

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