Lee Murrillo v. Michael J Astrue, No. 2:2011cv09670 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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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 LEE MURILLO,1 ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,2 ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 11-9670-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on November 23, 2011, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ), and supplemental security income ( SSI ). On December 22 22, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to 23 proceed before the undersigned United States Magistrate Judge. The 24 1 25 26 27 28 In the Joint Stipulation, it was noted that plaintiff s name was misspelled in the Complaint. (Joint Stipulation ( Joint Stip. ) at 1.) According to the Joint Stip., the correct spelling of plaintiff s surname is Murillo, not Murrillo. (Id.) 2 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 parties filed the Joint Stip. on September 4, 2012, in which: plaintiff 2 seeks an order reversing the Commissioner s decision and awarding 3 benefits 4 proceedings; and the Commissioner requests that his decision be affirmed 5 or, alternatively, remanded for further administrative proceedings. or, alternatively, remanding for further administrative 6 7 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 8 9 On November 10, 2008, plaintiff filed an application for a period 10 of disability and DIB, and on January 26, 2009, he filed an application 11 for SSI. 12 plaintiff alleged an inability to work since May 1, 2006 (id.), due to 13 diabetes, ne[u]ropathic [pain,] cataracts left and right eye[s] (A.R. 14 117) and, subsequently, due to nerve and muscle damage (A.R. 144). (Administrative Record ( A.R. ) 19.) In both applications, 15 16 The Commissioner denied plaintiff s application on May 28, 2009. 17 (A.R. 53-57.) On June 10, 2010, plaintiff, who was represented by 18 counsel, appeared and testified at a hearing before Administrative Law 19 Judge Edward C. Graham (the ALJ ). (A.R. 31-50.) 20 vocational expert, also testified. (Id.) 21 denied 22 subsequently denied plaintiff s request for review of the ALJ s decision 23 (A.R. 10-12). plaintiff s claim (A.R. 19-27), Jeanine Metildi, a On June 30, 2010, the ALJ and the Appeals Council That decision is now at issue in this action. 24 25 SUMMARY OF ADMINISTRATIVE DECISION 26 27 The ALJ found that plaintiff met the insured status requirements of 28 the Social Security Act through December 21, 2010, and had not engaged 2 1 in substantial gainful activity from his alleged onset date of May 1, 2 2006, through the date of the decision. 3 determined that plaintiff has the severe impairment of diabetes with 4 neuropathy. 5 or medically equal the criteria of an impairment listed in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 7 404.1526, 416.920(d), 416.925, 416.926). 8 record, the ALJ determined that plaintiff has the residual functional 9 capacity ( RFC ) to perform light work as defined in 20 C.F.R. [§§] 10 404.1567(b) and 416.967(b) except occasionally [he can] climb, balance, 11 stoop, kneel, crouch, and crawl. (Id.) (A.R. 21.) The ALJ further The ALJ concluded that the impairment did not meet (Id.) After reviewing the (A.R. 22.) 12 13 The ALJ also found that plaintiff was unable to perform his past 14 relevant work as a truck driver. (A.R. 25.) However, based upon 15 plaintiff s age,3 education,4 work experience, and RFC, the ALJ found 16 that other jobs exist in the national economy that plaintiff could 17 perform, including bench assembler, hand packager, electronics 18 worker, table worker, and assembler. 19 ALJ concluded that plaintiff has not been under a disability, as defined 20 in the Social Security Act, since May 1, 2006, the alleged onset date of 21 his disability. 22 /// 23 /// (A.R. 26.) Accordingly, the (A.R. 27.) 24 25 3 26 On the alleged disability onset date, plaintiff was 45 years old, which is defined as a younger individual. (A.R. 25; citing 20 C.F.R. §§ 404.1563, 416.963.) 27 4 28 In his decision, the ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 25.) 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence. 6 2007). Substantial evidence is such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion. 8 omitted). 9 necessarily a preponderance. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 10 (9th Cir. 2003). While inferences from the record can constitute 11 substantial evidence, only those reasonably drawn from the record will 12 suffice. 13 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 4 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 10 DISCUSSION 11 12 Plaintiff alleges the following three issues: (1) whether the ALJ 13 properly considered the opinion of physician Dr. Baham Chavoshan; 14 (2) whether 15 physician John Sedgh, M.D.; and (3) whether the ALJ properly considered 16 plaintiff s subjective complaints. the ALJ properly considered the opinion of examining (Joint Stip. at 4.) 17 18 I. The ALJ Did Not Properly Consider The Opinions Of Drs. Bahman Chavoshan And Uttan Reddy.5 19 20 21 It is the responsibility of the ALJ to analyze evidence and resolve 22 conflicts in the medical record. Benton v. Barnhart, 331 F.3d 1030, 23 1040 (9th Cir. 2003); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 24 1989). 25 a social security claim, [g]enerally, a treating physician s opinion In the hierarchy of physician opinions considered in assessing 26 5 27 28 Although the ALJ s evaluation of the opinion of Dr. Reddy was not raised specifically by plaintiff, Dr. Reddy s opinion, as noted infra, supports Dr. Chavoshan s opinion and does not appear to have been properly considered by the ALJ. 5 1 carries more weight than an examining physician s, and an examining 2 physician s opinion carries more weight than a reviewing physician s. 3 Holohan v. Massanari, 249 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 4 404.1527(d), 416.927(d); see Carmickle v. Comm r, Soc. Sec. Admin.,553 5 F.3d 1155, 1164 (9th Cir. 2008)(noting that [t]hose physicians with the 6 most significant clinical relationship with the claimant are generally 7 entitled 8 relationships ). 9 examining physician s uncontradicted medical opinion based on clear and to more weight than those physicians with lesser As such, the ALJ may only reject a treating or 10 convincing reasons. . . . Where such an opinion is contradicted, 11 however, it may be rejected for specific and legitimate reasons that 12 are supported by substantial evidence in the record. 13 Lester v. Chater, 81 F.3d 821, 830 31 (9th Cir. 1995)). Id.(quoting 14 15 On October 23, 2009, Dr. Bahman Chavoshan, plaintiff s purported 16 treating physician at Harbor-UCLA Medical Center, completed a one-page 17 Physical Capacities Evaluation of plaintiff. 18 form, Dr. Chavoshan indicated that plaintiff can: 19 and stand for one hour in an eight-hour day; occasionally lift and carry 20 up to five pounds; do no repetitive grasping, pushing and pulling of arm 21 controls, and fine manipulation of the hands; do no repetitive pushing 22 and pulling of his legs; and occasionally bend, squat, and reach. (Id.) 23 Plaintiff would have a mild limitation in exposure to marked changes in 24 temperature and humidity and would be totally restricted from activities 25 involving 26 driving automotive equipment. 27 plaintiff could not work more than part-time due to chronic pain, 28 fatigue, and the side effects from his medications. unprotected heights, being (Id.) 6 around (A.R. 219.) On this sit for five hours moving machinery, and Dr. Chavoshan concluded that (Id.) 1 The ALJ asserts that he gave little, if any weight to Dr. 2 Chavoshan s opinion, because: (1) there was no evidence of the 3 frequency and type of treatment plaintiff received from Dr. Chavoshan; 4 (2) Dr. Chavoshan did not indicate the basis upon which his opinion was 5 made; and (3) Dr. Chavoshan s opinion was not supported by the evidence. 6 (A.R. 25.) 7 8 9 First, the ALJ noted that there was no evidence of the frequency and type of treatment Dr. Chavoshan provided to plaintiff. (A.R. 25.) 10 Indeed, other than the one form, Dr. Chavoshan s name appears only one 11 other time in the record, when Dr. Chavoshan refilled a prescription of 12 Gabapentin 13 administrative record, there is insufficient evidence to support the 14 conclusion that Dr. Chavoshan was plaintiff s treating physician, as 15 opposed to merely an examining physician. 16 416.902 (defining a treating source as someone who provides medical 17 treatment or evaluation and who has or has had an ongoing treatment 18 relationship with the claimant, which means seeing the physician with 19 a frequency consistent with acceptable medical practice for the type of 20 treatment or evaluation required for the claimant s condition). for plaintiff. (A.R. 246.) Thus, based on the See 20 C.F.R. §§ 404.1502, 21 22 Further, an ALJ may discredit a treating physician s opinion if it 23 is conclusory, brief, and unsupported by the record as a whole or by 24 objective medical findings. 25 Cir. 2002); see also, Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 26 1190, 1195 (9th Cir. 2004)(upholding the ALJ s rejection of an opinion 27 that was conclusory in the form of a check-list, and lacked supporting 28 clinical findings). Thomas v. Barnhart, 278 F.3d 947, 957 (9th 7 1 As there does not appear to be a treating relationship between Dr. 2 Chavoshan and plaintiff, and Dr. Chavoshan s one-page evaluation of 3 plaintiff was conclusory and brief, the ALJ may refuse to afford Dr. 4 Chavoshan s opinion the same weight afforded to that of a treating 5 physician. 6 on these grounds, particularly in view of the fact that: 7 to the ALJ s conclusion, the findings contained in Dr. Chavoshan s form 8 are not inconsistent with the objective medical records, specifically, 9 with those of plaintiff s treating physician Dr. Uttan Reddy; and (2) 10 Dr. Chavoshan appears to be the only physician who had the opportunity 11 to consider plaintiff s abnormal May 2009 EMG and nerve conduction 12 studies when assessing plaintiff s functional limitations. 13 v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)(holding that it was 14 error for an ALJ to ignore or misstate competent evidence in the record 15 to justify his conclusion). However, Dr. Chavoshan s opinion cannot be ignored entirely (1) contrary See Gallant 16 17 The ALJ erroneously gave little weight to Dr. Reddy s opinion, 18 because it was not supported by objective medical evidence, clinical 19 signs and observations, and treating history. 6 (A.R. 25.) Dr. Reddy, 20 21 22 23 24 25 26 27 28 6 The ALJ s reasons for rejecting Dr. Reddy s opinion were not supported by substantial evidence. First, contrary to the ALJ s contention, there was a treating history; Dr. Reddy was plaintiff s primary treating physician in 2008 and 2009. Further, Dr. Reddy s treatment notes contained his own objective findings. (See A.R. 166 (09/05/08 - plaintiff noted severe pain in both hands; Dr. Reddy suspected Raynaud s OS and may start CCB if points to Raynauds ); A.R. 164 (11/03/08 Dr. Reddy noted that rheum workup [illegible] on last visit - negative ; as for plaintiff s bilateral hand pain, he will continue to observe and will refer to ortho if pt progresses/develops contracture ); A.R. 162 (02/04/09 - Dr. Reddy noted [u]nder etiology, pt has component of Raynauds syndrome and of early contracture (Dupuytren). Will refer to ortho clinic . . . and will get x-rays ); A.R. 268 (03/27/09 - Dr. Reddy diagnosed plaintiff with bilateral hand pain and diabetes, noted that plaintiff still [was] having similar 8 1 plaintiff s primary treating physician at UCLA-Harbor Medical Center in 2 2008 and 2009, determined plaintiff to be temporarily disabled from 3 March 4 etiology. (A.R. 178, 268.) 5 orthopedic hand 6 evaluation. 7 . . will refer for nerve conduction studies . . . will give disability 8 for 6 mos. given current determination. ) 2009, until September specialist 2009, due to neuropathy of unclear Dr. Reddy also referred plaintiff to an for additional diagnostic testing and (A.R. 268 - Dr. Reddy noting [r]eferral to ortho [h]and . 9 10 On May 13, 2009, plaintiff underwent EMG and nerve conduction 11 studies that indicated: 12 show decreased conduction velocities with normal latencies, somewhat 13 borderline 14 otherwise normal, as is R ulnar motor. 15 unobtainable. 16 normal. normal Bilateral tibial and peroneal motor studies amplitudes. R median motor onset is delayed, All sensory nerves tested were EMG of select proximal and distal UE/LE muscles was (A.R. 223.) As such, it was an [a]bnormal study. Results 17 18 are most consistent with a mixed sensorimotor polyneuropathy. Given his 19 h[istory], DM seems most likely cause . . . although differential would 20 continue to include others, and clinical correlation is advised. 7 (A.R. 21 22 23 symptoms of feeling like he is walking on glass and feeling swollen cold hands although not [illegible] swollen or cold, and referred plaintiff to ortho [h]and for erve conduction studies for, inter alia, possible undefined neuropathy. ).) 24 7 25 26 27 28 While the ALJ discusses these findings in his decision, it appears the ALJ mistakenly believed that these tests were conducted on June 17, 2008, when plaintiff first presented for treatment at HarborUCLA Medical Center. (A.R. 23.) Based on the ALJ s mistaken belief, he erroneously minimizes the results of the tests and concludes that the testing does not support the extent of plaintiff s limitations, because there was no further confirmation of such diagnosis and plaintiff was discharged the same day with instructions on insulin injection and 9 1 224.) 2 3 Thus, this abnormal study and Dr. Reddy s findings demonstrate 4 that the ALJ failed to consider properly evidence which could support 5 Dr. Chavoshan s opinions. 6 findings seem to be inconsistent with some of the treatment records, 7 that inconsistency appears to be a result of the chronic and recurrent 8 nature of plaintiff s condition. 9 constitute 10 a specific and While, at first blush, Dr. Chavoshan s As such, the ALJ s reasoning cannot legitimate reason for rejecting Dr. Chavoshan s opinion. 11 12 Further, as noted supra, Dr. Chavoshan appears to be the only 13 physician of record who had the benefit of considering plaintiff s 14 abnormal May 2009 EMG and nerve conduction studies when assessing 15 plaintiff s functional limitations. 16 the only one of record that was rendered after the completion of these 17 tests.8 Thus, the restrictions indicated by the nerve conduction and EMG 18 could very well support Dr. Chavoshan s limitations. Indeed, Dr. Chavoshan s opinion is 19 20 On remand, the ALJ must reconsider Dr. Chavoshan s opinion, as well 21 as the opinion of Dr. Reddy, particularly in view of the May 2009 EMG 22 and nerve conduction test results. 23 these opinions no weight, he should set forth specific and legitimate 24 reasons for so doing. Should the ALJ again elect to give 25 26 proper administration. (A.R. 23.) 27 8 28 Although the tests were conducted on May 13, 2009, it appears the results were not released until May 26, 2009. (See A.R. 229.) 10 1 II. The ALJ Failed To Give Specific And Legitimate Reasons 2 For Rejecting Certain Limitations Found By Examining 3 Physician Dr. John Sedgh. 4 5 An ALJ may also reject the opinion of an examining physician by 6 providing specific and legitimate reasons supported by substantial 7 evidence in the record. Lester, 81 F.3d at 830 31. 8 9 The ALJ gave significant weight to the opinion of consultative 10 examiner Dr. John Sedgh and State agency physician Dr. K. Beig in 11 assessing plaintiff s RFC. (A.R. 24-25.) However, the ALJ specifically 12 rejected Dr. Sedgh s two hour walk/stand limitation in favor of Dr. 13 Beig s 14 hours. 15 limitation, 16 complaints; and (2) it was inconsistent with Dr. Sedgh s own physical 17 examination 18 unpersuasive. opinion (Id.) that plaintiff could walk/stand for six The ALJ rejected Dr. Sedgh s more restrictive stand/walk because: of (1) it plaintiff. was (A.R. based 24.) on plaintiff s The ALJ s subjective reasons are 19 20 On May 12, 2009, Dr. Sedgh, after an examination of plaintiff s 21 musculoskeletal system and upper and lower extremities, as well as a 22 neurological exam, concluded as follows: 23 24 Diabetes. [Plaintiff] had subjectively decreased sensation in 25 the 26 antalgic. lower extremities. Gait is slightly to moderately 27 28 From a functional standpoint, [plaintiff] can lift and carry 11 1 [twenty] pounds occasionally and [ten] pounds frequently. He 2 can stand and walk two hours in an eight-hour day with normal 3 breaks. 4 Kneeling, 5 occasional. It is my opinion [plaintiff] does not need a cane 6 or any type of assistive device. He can sit for six hours in an eight-hour day. crouching and stooping should be limited to 7 8 (A.R. 191.) 9 10 On May 26, 2009, after reviewing plaintiff s medical record, 11 including Dr. Sedgh s report, State agency reviewing physician Dr. Beig 12 opined 13 occasionally and ten pounds frequently; and stand, walk, and sit about 14 six hours in an eight-hour workday. 15 unlimited 16 ramps/stairs, balance, stoop, kneel, crouch, and crawl but could only 17 occasionally 18 197.) 19 environmental limitations. that plaintiff push and climb could: pull lift abilities and/or carry (A.R. 195-201.) and could ladders/ropes/scaffolds and twenty pounds Plaintiff had frequently balance. climb (A.R. Dr. Beig assessed no manipulative, visual, communicative, or (Id.) 20 21 The ALJ s first i.e., reason it rejecting appears to be Dr. Sedgh s based on stand/walk 22 limitation, 23 subjective complaints of decreased sensation in the lower extremities, 24 is not legitimate and suggests a need for further development of the 25 record. 26 examination of plaintiff showed generally normal results, Dr. Sedgh 27 also determined that plaintiff s gait was slightly to moderately 28 antalgic. (A.R. 24.) that for plaintiff s Although, as noted by the ALJ, Dr. Sedgh s physical (A.R. 24, 187-91.) This limitation could support Dr. 12 1 Sedgh s decision to limit plaintiff to only two hours of walking and 2 standing. 3 objective evidence supported Dr. Sedgh s limitation, the ALJ should have 4 recontacted 5 appropriate inquiry. 6 that the administration will seek additional evidence or clarification 7 from your medical source when the report . . . from your medical source 8 contains a conflict or ambiguity that must be resolved, [or] the report 9 does not contain all the necessary information ). To the extent the ALJ had any questions regarding what Dr. Sedgh in accordance with his duty to conduct an See 20 C.F.R. §§ 404.1512(e), 416.912(e) (noting 10 11 The ALJ also was reasoned that Dr. Sedgh s inconsistent with his own two physical hour stand/walk 12 limitation examination of 13 plaintiff, because Dr. Sedgh did not indicate evidence of muscle atrophy 14 and also determined that plaintiff did not need a cane or any type of 15 assistive device. 16 that the ALJ is not qualified to make. 17 180 F.3d 1094, 1102-03 (9th Cir. 1999)(ALJ may not substitute his own 18 interpretation of the medical evidence for the opinion of medical 19 professionals); Banks v. Barnhart, 434 F. Supp.2d 800, 805 (C.D. Cal. 20 2006)(noting that an ALJ must not succumb to the temptation to play 21 doctor and make [his] own independent medical findings )(citing Rohan 22 v. Chater, 98 F.3d 966, 970 (7th However, these reasons constitute a medical opinion See generally, Tackett v. Apfel, Cir. 1996)). 23 24 Finally, rather than simply recontacting Dr. Sedgh for 25 clarification of his opinion, the ALJ relied upon the opinion of a non- 26 examining State physician. 27 walk/stand for six hours, Dr. Beig did not rely on any evidence that Dr. 28 Sedgh had not considered. However, in finding that plaintiff could (See A.R. 195-201.) 13 Therefore, Dr. Beig s 1 six hour walk/stand limitation, alone, cannot constitute substantial 2 evidence, because it is not based on any independent findings, and the 3 ALJ failed to give legitimate reasons for rejecting Dr. Sedgh s opinion. 4 Andrews, 53 F.3d at 1041 (noting that where a nontreating source s 5 opinion contradicts that of the treating physician but is not based on 6 independent clinical findings, or rests on clinical findings also 7 considered by the treating physician, the opinion of the treating 8 physician may be rejected only if the ALJ gives specific, legitimate 9 reasons 10 for doings so that are based on substantial evidence of record ). 11 12 In any event, it appears that the ALJ s RFC assessment is not 13 supported by substantial evidence. As discussed above, neither Dr. 14 Sedgh nor Dr. Beig reviewed and analyzed the results of the May 2009 EMG 15 and nerve conduction studies, and therefore, neither physician took 16 these results into account. 17 and Beig had considered the nerve conduction study, their opinions may 18 have been altered. 19 the EMG and nerve conduct tests in the proper time frame, and if the ALJ 20 had properly considered the test results, the ALJ also may have also 21 reached a different conclusion. (See A.R. 187-91, 195-201.) If Drs. Sedgh Further, as noted above, the ALJ failed to consider 22 23 Given the ALJ s substantial reliance on the opinions of Drs. Sedgh 24 and Beig, whose opinions were rendered without review of relevant tests, 25 and the ALJ s own improper independent consideration of the tests, which 26 constituted legal error, the ALJ s RFC determination is not based on a 27 proper and sufficiently complete picture of plaintiff s condition. 28 20 C.F.R. §§ 404.1545(a), 416.945(a) (a claimant s residual functional 14 See 1 capacity is an assessment based upon all of the relevant evidence); 2 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) 3 (medical expert opinions constitute substantial evidence only when they 4 are supported by the record and consistent with it). 5 6 The Commissioner argues that, even if the ALJ erred in crediting 7 Dr. Sedgh s stand/walk limitation, any error is harmless. 8 at 15.) 9 case is being remanded for the reasons stated supra, and the ALJ s 10 (Joint Stip. However, the Court need not address this issue, because this determination of plaintiff s RFC may change. 11 12 13 III. The ALJ Must Reconsider Plaintiff s Subjective Complaints. 14 15 Based on the foregoing, there are several matters the ALJ needs to 16 review and reconsider on remand. As a result, the ALJ s conclusion 17 regarding plaintiff s credibility may change. 18 opinions of Dr. Chavoshan and Dr. Reddy, as well as the EMG and nerve 19 conduction test results, may support plaintiff s complaints and alleged 20 limitations, which the ALJ had deemed to be out of proportion to the 21 objective findings and observed functional restrictions. 22 Accordingly, the Court does not reach plaintiff s third claim -- to wit, 23 that the ALJ erred in finding plaintiff to be not credible. When viewed fairly, the (A.R. 22.) 24 25 On remand, the ALJ should have a physician review the EMG and nerve 26 conduction studies and results, and take these findings into account in 27 assessing plaintiff s limitations. 28 these findings in the light of the record as a whole and revisit his After doing so, the ALJ should view 15 1 consideration of the various medical opinions and plaintiff s 2 credibility. 3 reassessed, additional testimony from a vocational expert likely will be 4 required. Further, to the extent plaintiff s RFC may need to be 5 6 IV. Remand Is Required. 7 8 The decision whether to remand for further proceedings or order an 9 immediate award of benefits is within the district court s discretion. 10 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 11 useful purpose would be served by further administrative proceedings, or 12 where the record has been fully developed, it is appropriate to exercise 13 this discretion to direct an immediate award of benefits. 14 ( [T]he decision of whether to remand for further proceedings turns upon 15 the likely utility of such proceedings. ). 16 outstanding issues that must be resolved before a determination of 17 disability can be made, and it is not clear from the record that the ALJ 18 would be required to find the claimant disabled if all the evidence were 19 properly evaluated, remand is appropriate. Id. at 1179 However, where there are Id. at 1179-81. 20 21 Remand is the appropriate remedy to allow the ALJ the opportunity 22 to remedy the above-mentioned deficiencies and errors. 23 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 24 further proceedings is appropriate if enhancement of the record would be 25 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 26 (remand appropriate to remedy defects in the record). 27 ALJ must correct the above-mentioned deficiencies and errors. 28 16 See, e.g., On remand, the 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 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: March 27, 2013 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 17

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