Jeremy Kidwell-Corr v. Michael J Astrue, No. 2:2011cv07890 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is granted, Defendant's motion for summary judgment is denied, the decision of the Commissioner of the Social Security Administration is reversed, and the matter is remanded to the Administration for the immediate calculation and payment benefits. (sp)

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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 JEREMY KIDWELL CORR, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) Defendant. ) ) ___________________________________) NO. ED CV 11-7890-E MEMORANDUM OPINION AND ORDER 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that the decision of the Commissioner of the Social 20 Security Administration is reversed and the matter is remanded for the 21 immediate calculation and payment of benefits. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on September 23, 2011, seeking review 26 of the Commissioner s denial of disability benefits. The parties 27 filed a consent to proceed before a United States Magistrate Judge on 28 October 27, 2011. Plaintiff filed a motion for summary judgment on 1 March 19, 2012. Defendant filed a cross-motion for summary judgment 2 on April 18, 2012. 3 without oral argument. 4 2011. The Court has taken the motions under submission See L.R. 7-15; Order, filed September 26, 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability based on heart problems (A.R. 14046, 157-58). Plaintiff testified to symptoms of allegedly disabling 10 severity (A.R. 39-70). Plaintiff s former roommate gave potentially 11 corroborating testimony (A.R. 71-88). 12 13 The Administrative Law Judge ( ALJ ) found Plaintiff not disabled 14 (A.R. 28-35). The ALJ determined that Plaintiff suffers from the 15 following severe impairments: status post AICD (Automatic Implantable 16 Cardiac Defibrillator) cardioversion, probable episode of atrial 17 flutter and ventricular tachycardia, tricuspid atresia, status post 18 fontan with lateral tunnel, and status post pacer AICD with history of 19 atrial flutter (A.R. 30). 20 that Plaintiff s cardiac impairments reduce Plaintiff s functional 21 capacity well below the capacity necessary to sustain substantial 22 gainful activity (A.R. 350-51, 469-70). 23 opinions (A.R. 30-31). 24 capacity to perform light work except that Plaintiff can stand or 25 walk only two hours in an eight-hour workday, can perform postural 26 activities only occasionally, cannot crawl, cannot climb ladders, 27 ropes, or scaffolds, cannot be exposed to extreme temperatures, cannot 28 work around heights or around hazardous equipment, and cannot be Plaintiff s treating physicians opined The ALJ disagreed with these According to the ALJ, Plaintiff retains the 2 1 exposed to concentrated dust, fumes, and gases (A.R. 30-31).1 2 these limitations, according to the ALJ, Plaintiff could perform jobs 3 existing in the national economy including cashier II, food and 4 beverage order clerk, and telephone quotation clerk (A.R. 35 (adopting 5 vocational expert testimony at A.R. 89-90)). With 6 7 The ALJ deemed Plaintiff s testimony not credible to the extent 8 the testimony was inconsistent with the ALJ s residual functional 9 capacity determination (A.R. 31, 33). The ALJ also deemed not 10 credible the lay witness observations of Plaintiff s former roommate, 11 to the extent those observations were inconsistent with the ALJ s 12 residual functional capacity determination (A.R. 33-34). 13 Council denied review (A.R. 1-4). 14 /// 15 /// 16 /// 17 /// The Appeals 18 19 20 21 22 23 24 25 26 27 28 1 Light work involves lifting and carrying no more than 20 pounds occasionally and 10 pounds frequently. See 20 C.F.R. § 416.967(b). Although the ALJ described Plaintiff as having the residual functional capacity to perform a limited range of light work, the vocational expert testified that a person with the residual functional capacity the ALJ described would be limited to sedentary work due to the standing and walking limitation (A.R. 89). Social Security Ruling 83-10 instructs that the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. See SSR 8310; see also Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990) (Social Security rulings are binding on the Administration). [A]t the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. See SSR 83-10. 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence means such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 12 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 Where, as here, the Appeals Council considered additional 15 material but denied review, the additional material becomes part of 16 the Administrative Record for purposes of the Court s analysis. 17 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.), cert. denied, 531 18 U.S. 1038 (2000) (reviewing court properly may consider materials 19 submitted to the Appeals Council when the Appeals Council addressed 20 the materials in denying review); Ramirez v. Shalala, 8 F.3d 1449, 21 1452 (9th Cir. 1993) ( although the Appeals Council declined to review 22 the decision of the ALJ, it reached this ruling after considering the 23 case on the merits; examining the entire record, including the 24 additional material; and concluding that the ALJ s decision was proper 25 and that the additional material failed to provide a basis for 26 changing the hearing decision. 27 appeal both the ALJ s decision and the additional material submitted 28 to the Appeals Council ) (citations and quotations omitted); Penny v. See For these reasons, we consider on 4 1 Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ( the Appeals Council 2 considered this information and it became part of the record we are 3 required to review as a whole ); see generally 20 C.F.R. §§ 4 404.970(b), 416.1470(b). 5 6 DISCUSSION 7 8 9 Plaintiff contends, inter alia, that the ALJ erred in the ALJ s evaluation of certain opinions rendered by Plaintiff s treating 10 physicians, and that substantial evidence does not support the ALJ s 11 residual functional capacity assessment. 12 9. See Plaintiff s Motion at 4- For the reasons discussed below, the Court agrees. 13 14 I. Summary of Relevant Portions of the Medical Record. 15 16 Plaintiff was born with heart defects, which have required 22 17 cardiac interventions or surgical procedures dating back to infancy 18 (A.R. 492). 19 Plaintiff since birth. 20 48, 459-66, 474-80, 488-92, 494-567, 572-78, 580-86, 588-94, 607, 622- 21 32, 643-44, 664-73, 681-86, 692-723 (treatment and surgical records). Dr. L. Stephen Gordon, a cardiologist, has treated See A.R. 326-41, 357-65, 371-96, 438-40, 447- 22 23 Dr. Gordon completed a Cardiac Impairment Questionnaire for 24 Plaintiff dated April 23, 2008 (A.R. 467-72). 25 Plaintiff a guarded prognosis, stating that Plaintiff suffers from 26 chest pain, shortness of breath, fatigue, weakness, edema, 27 palpitations, dizziness, and sweatiness (A.R. 467). 28 his impressions on laboratory and diagnostic test results consisting 5 Dr. Gordon gave Dr. Gordon based 1 of echocardiograms, cardiac catheterizations, x-rays, and 2 electrocardiograms (A.R. 468). 3 occasionally lift up to 10 pounds, could not carry any weight, could 4 sit only two hours in an eight-hour workday, and could stand/walk only 5 one hour or less in an eight-hour workday (A.R. 469-70). 6 indicated that Plaintiff would be absent from work more than three 7 times per month due to Plaintiff s medical condition (A.R. 470). Dr. Gordon opined that Plaintiff could Dr. Gordon 8 9 Dr. Thomas E. Miles, Jr., is an internist who has treated 10 Plaintiff since July 2002. See A.R. 399-401, 687-90 (treatment 11 records).2 12 Plaintiff dated December 20, 2007 (A.R. 348-53). 13 that Plaintiff suffers from chest pain, shortness of breath, fatigue, 14 palpitations, and dizziness (A.R. 348). 15 guarded prognosis, and opined that Plaintiff s symptoms would 16 increase if Plaintiff were placed into a competitive work environment 17 (A.R. 348, 350; see also A.R. 354, 369 (letters describing Plaintiff 18 as very thin and frail and stating that Plaintiff is limited in 19 terms of his physical activity), 569 (letter noting Plaintiff is 20 limited to only light physical activity ), 679 (letter opining 21 Plaintiff cannot perform full-time competitive work because of cardiac 22 disease). 23 50 pounds, frequently lift 5-10 pounds, occasionally carry 10-20 24 pounds, frequently carry 5-10 pounds, sit no more than four hours in 25 an eight-hour workday, and stand/walk no more than two hours in an 26 eight-hour workday (A.R. 350-51; see also A.R. 369). Dr. Miles completed a Cardiac Impairment Questionnaire for Dr. Miles stated Dr. Miles gave Plaintiff a Dr. Miles opined that Plaintiff could occasionally lift 20- Dr. Miles also 27 2 28 Dr. Gordon copied Dr. Miles on Dr. Gordon s treatment records. 6 1 indicated that Plaintiff would be absent from work about two or 2 three times per month due to Plaintiff s medical condition (A.R. 351). 3 4 Nonexamining state agency physician, Dr. Rosa Halpern, completed 5 a Physical Residual Functional Capacity Assessment form for Plaintiff 6 dated October 25, 2007 (A.R. 342-47). 7 treating source statements (A.R. 347). 8 Plaintiff would be capable of occasionally lifting and carrying 20 9 pounds, frequently lifting and carrying 10 pounds, unlimited Dr. Halpern did not review any Dr. Halpern opined that 10 pushing/pulling, standing and/or walking at least two hours in an 11 eight-hour workday, and sitting about six hours in an eight-hour 12 workday (A.R. 343). Dr. Halpern stated: 13 14 Claimant with history of heart problems, he has a history of 15 atrial flutter and tachycardia with AICD placement. 16 2005/early 2006, claimant received two shocks for supra 17 ventricular tachycardia at heart rates of 240. 18 exam is consistently the same from records in 2006 to the 19 present there is a loud valve click, grade 2/6 systolic 20 ejection murmur and a grade 3/6 blowing diastolic murmur at 21 the base of the heart. 22 ST and T wave changes with left ventricular hypertrophy. 23 Echocardiograms show tricuspid atresia with transposition, 24 mild aortic valve regurgitation, normal ventricular 25 function. 26 ventricle physiology [status post] Fontan operation, and 27 possible mild ischemic changes. [T]here is a prosthetic 28 mitral valve[.] In late His cardiac Most recent EKG showed nonspecific Stress echo done 2/13/2007 showed single 7 1 (A.R. 342-43). Dr. Halpern opined that Plaintiff could occasionally 2 climb, balance, stoop, kneel, and crouch, but never crawl, and stated 3 that Plaintiff should avoid concentrated exposure to extreme cold and 4 heat, fumes, odors, dusts, gases, poor ventilation, and hazardous 5 machinery (A.R. 345-46). 6 7 II. 8 The ALJ Erred in His Evaluation of the Medical Evidence and in His Determination of Plaintiff s Residual Functional Capacity. 9 10 In determining Plaintiff s residual functional capacity, the ALJ 11 purportedly relied on the opinion of nonexamining state agency 12 physician, Dr. Halpern, and purported to give only limited weight to 13 the opinions of the treating physicians, Drs. Miles and Gordon. 14 ALJ explained: The 15 16 I accord limited weight to the opinions of Dr. Miles and Dr. 17 Gordon. 18 limited range of less than sedentary work or work that 19 entails less than eight hours a day. 20 contradicted by the claimant s actual ability to do things 21 such as play guitar on gigs, live alone, and traveled [sic] 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 They essentially limit the claimant to a very /// 8 Their opinions are 1 to Phoenix by car to attend a concert.3 2 claimant had ejection fractions in the normal range. 3 claimant s regular follow up of his heart generally showed 4 no significant changes. 5 score of 10.1. 6 exercising more since his December 2008 surgery. 7 2009 there was no evidence of deep vein thrombosis. 8 claimant weighed 132 pounds. 9 showed that the claimant s overall ventricular function Moreover, the The In February 2007 he achieved a METs Dr. Miles noted that the claimant had been 10 appeared good. 11 claimant was asymptomatic. In January The A January 2009 echocardiogram In June 2009 Dr. Gordon stated that the Based on the above factors, I 12 13 3 14 15 16 17 Plaintiff testified that he had played 20-minute coffee shop gigs with his acoustic guitar for a period of time, but had not played for a couple of years (A.R. 52-53, 60). Plaintiff had started a band with friends but the band had not really done anything (A.R. 51-52). Plaintiff testified that if he wanted to do something like play 30 minutes somewhere, he would suffer consequences for the next couple of days, if not weeks, because his body does not enjoy these things (A.R. 67). 18 19 20 21 22 23 24 Plaintiff s former roommate, Robert Hallback, testified that Plaintiff has a band and practices maybe an hour, total, with breaks, and that the performances last anywhere from 30 minutes to an hour (A.R. 83). Plaintiff reportedly would turn blue when he performs and had been defibrillated on stage and rushed to a hospital (A.R. 84). Hallback said that Plaintiff usually knocks himself off his feet for the next couple of days when he does any strenuous activity (A.R. 85-86). Hallback said that he drove Plaintiff six to eight hours to a concert in Phoenix once and had to stop four or five times for food and restroom breaks (A.R. 88). 25 26 27 28 The only evidence concerning Plaintiff s reported daily activities appears in his Disability Report forms, in which Plaintiff reported that he is unable to care for his personal needs (A.R. 172, 184). Plaintiff had been living alone for a few months in his father s rental house at the time of the hearing (A.R. 40). 9 1 find that the opinions of Dr. Miles and Dr. Gordon merit 2 less weight. 3 consistent with the overall evidence. I find that Dr. Halpern s opinion is more 4 5 A.R. 33 (internal citations to the medical record omitted). 6 A treating physician s conclusions must be given substantial 7 8 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 9 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ( the ALJ must 10 give sufficient weight to the subjective aspects of a doctor s opinion 11 . . . 12 physician ) (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 13 631-33 (9th Cir. 2007) (discussing deference owed to treating 14 physician opinions); see generally 20 C.F.R. §§ 404.1527(d)(2), 15 416.927(d)(2). 16 contradicted,4 if the ALJ wishes to disregard the opinion[s] of the 17 treating physician he . . . must make findings setting forth specific, 18 legitimate reasons for doing so that are based on substantial evidence 19 in the record. 20 (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 21 876 F.2d at 762 ( The ALJ may disregard the treating physician s 22 opinion, but only by setting forth specific, legitimate reasons for 23 doing so, and this decision must itself be based on substantial 24 evidence ) (citation and quotations omitted). This is especially true when the opinion is that of a treating Even where the treating physician s opinions are Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) 25 26 4 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of clear and convincing reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 10 1 The ALJ s residual functional capacity determination effectively 2 rejected the opinions of Drs. Miles and Gordon without stating legally 3 sufficient reasons for doing so. 4 in part, on Plaintiff s daily activities (A.R. 33). 5 inconsistency between a treating physician s opinion and a claimant s 6 admitted level of daily activities can furnish a specific, legitimate 7 reason for rejecting the treating physician s opinion. 8 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 9 the ALJ s suggestion, however, the fact that Plaintiff was able to As summarized above, the ALJ relied, A material See, e.g., Contrary to 10 play brief guitar gigs, live alone, and travel one time to Phoenix by 11 car (with frequent stops) is not necessarily inconsistent with an 12 inability to sit for more than four hours in an eight-hour workday or 13 to stand/walk for more than two hours in an eight-hour workday. 14 Plaintiff s admitted activities are also not inconsistent with having 15 to miss two or more days of work per month due to his medical issues, 16 or with an inability to engage in sustained activity in a work setting 17 on a regular and continuing basis for eight hours a day, five days a 18 week. 19 Significantly, the vocational expert testified that a person with the 20 residual functional capacity the ALJ found to exist (which assumes 21 greater capacity than the treating physicians found) but who would be 22 absent from work, unscheduled, two to three times per month, could not 23 sustain employment (A.R. 90-91). See SSR 96-8p (defining scope of residual functional capacity). 24 25 Like Plaintiff s admitted activities, the ALJ s characterizations 26 and interpretations of particular medical test results cannot 27 constitute specific, legitimate reasons for rejecting the opinions 28 of the treating physicians. The ALJ stated that Plaintiff has 11 1 ejection fractions in a normal range, once achieved a METs score of 2 10.1, has no evidence of deep vein thrombosis, has an echocardiogram 3 that showed overall ventricular function as good, and once was 4 reportedly asymptomatic. 5 opinion interpreting these test results in any manner so as to impugn 6 the treating physicians opinions regarding Plaintiff s functional 7 capacity. 8 others) and provided his records to Dr. Miles, but each of these 9 physicians concluded that Plaintiff has greater limitations than the The record contains no expert medical Dr. Gordon recorded each of these test results (along with 10 limitations the ALJ found to exist. See A.R. 337-38, 363, 365, 382- 11 83, 398, 488, 490, 588 (cited medical records). 12 record ever discussed how the specific evidence the ALJ cited 13 supposedly proves a greater functional capacity than the treating 14 physicians found to exist. No physician of 15 16 It is well-settled that an ALJ may not render his or her own 17 medical opinion or substitute his or her own diagnosis for that of a 18 claimant s physician. 19 (9th Cir. 1999) (ALJ erred in rejecting physicians opinions and 20 finding greater residual functional capacity based on claimant s 21 testimony about a road trip; there was no medical evidence to support 22 the ALJ s residual functional capacity finding determination); Day v. 23 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden 24 from making his own medical assessment beyond that demonstrated by the 25 record); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an ALJ 26 cannot arbitrarily substitute his own judgment for competent medical 27 opinion ) (internal quotation marks and citation omitted); Rohan v. 28 Chater, 98 F.3d 966, 970 (7th Cir. 1996) ( ALJs must not succumb to See Tackett v. Apfel, 180 F.3d 1094, 1102-03 12 1 the temptation to play doctor and make their own independent medical 2 findings ). 3 medical evidence pointed toward a greater functional capacity than the 4 treating physicians found to exist, the ALJ should have consulted a 5 qualified medical expert to attempt to confirm or dispel the ALJ s 6 suspicion. If the ALJ suspected that the cited test results or other See id. 7 8 9 Dr. Halpern s opinion could not furnish substantial evidence to support the ALJ s rejection of the treating physicians opinions. Dr. 10 Halpern s opinion predated all of the opinions of record from 11 Plaintiff s treating physicians, and Dr. Halpern did not base her 12 opinion on any independent clinical findings. 13 nontreating physician s opinion contradicts that of the treating 14 physician but is not based on independent clinical findings, or 15 rests on clinical findings also considered by the treating physician 16 the opinion of the treating physician may be rejected only if the ALJ 17 gives specific legitimate reasons for doing so that are based on 18 substantial evidence in the record. 19 Security Administration, 169 F.3d 595, 600 (9th Cir. 1999). 20 opinion of a nonexamining physician, by itself, is insufficient to 21 constitute substantial evidence to reject the opinion of a treating or 22 examining physician. 23 n.2 (9th Cir. 2006) (citing Lester v. Chater, 81 F.3d 821, 831 (9th 24 Cir. 1995)). Where, as here, a Morgan v. Commissioner of Social Thus, the See Widmark v. Barnhart, 454 F.3d 1063, 1067 25 26 Finally, Defendant argues that the opinions of Drs. Gordon and 27 Miles that Plaintiff could not work is [sic] a legal opinion reserved 28 for the Commissioner (Defendant s Motion at 6). 13 Although the 1 ultimate issue of disability is reserved to the Administration, the 2 ALJ still must set forth specific, legitimate reasons for rejecting a 3 treating physician s opinion that a claimant is disabled. 4 Rodriguez v. Bowen, 876 F.2d at 762 n.7 ( We do not draw a distinction 5 between a medical opinion as to a physical condition and a medical 6 opinion on the ultimate issue of disability. ). See 7 8 9 In sum, the ALJ rejected the opinions of Drs. Gordon and Miles without stating specific, legitimate reasons therefor, and thereby 10 arrived at a residual functional capacity determination unsupported by 11 substantial evidence. 12 13 III. Reversal for An Award of Benefits is Appropriate. 14 15 When there exists error in an administrative determination, the 16 proper course, except in rare circumstances, is to remand to the 17 agency for additional investigation or explanation. 18 537 U.S. 12, 16 (2002) (citations and quotations omitted). 19 error is the improper rejection of medical opinion evidence, however, 20 the Ninth Circuit has instructed that such evidence should be credited 21 and an immediate award of benefits directed where: 22 failed to provide legally sufficient reasons for rejecting such 23 evidence, (2) there are no outstanding issues that must be resolved 24 before a determination of disability can be made, and (3) it is clear 25 from the record that the ALJ would be required to find the claimant 26 disabled were such evidence credited. 27 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (citations 28 /// 14 INS v. Ventura, When the (1) the ALJ has Harman v. Apfel, 211 F.3d 1 and quotations omitted) ( Harman ).5 2 3 In the present case, application of the Harman rule requires 4 reversal for an immediate award of benefits. As discussed above, the 5 ALJ failed to provide legally sufficient reasons for rejecting the 6 opinions of Drs. Gordon and Miles. 7 opinions concerning Plaintiff s limitations were fully credited, the 8 ALJ clearly would be required to find Plaintiff disabled. 9 no outstanding issues to be resolved before a disability determination If Dr. Gordon s and Dr. Miles There are 10 may be made. Under the circumstances of this case, the law does not 11 require the Court to afford the Administration a second opportunity to 12 address the improperly rejected medical opinions. 13 F.3d at 1179; see also Benecke v. Barnhart, 379 F.3d at 595 ( Allowing 14 the Commissioner to decide the issue again would create an unfair 15 heads we win; tails, let s play again system of disability benefits 16 adjudication. . . . 17 proceedings can delay much needed income for claimants who are unable 18 to work and are entitled to benefits, often subjecting them to 19 tremendous financial difficulties while awaiting the outcome of their 20 appeals and proceedings on remand ) (citations and quotations 21 omitted). 22 /// 23 /// 24 /// See Harman, 211 Remanding a disability claim for further 25 26 27 28 5 The Ninth Circuit has continued to apply Harman subsequent to INS v. Ventura. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010); Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 15 CONCLUSION 1 2 3 For all of the foregoing reasons,6 Plaintiff s motion for summary 4 judgment is granted, Defendant s motion for summary judgment is 5 denied, the decision of the Commissioner of the Social Security 6 Administration is reversed, and the matter is remanded to the 7 Administration for the immediate calculation and payment of benefits. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: May 16, 2012. 12 13 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6 28 The Court need not and does not reach any of the other issues raised by Plaintiff. 16

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