Edward Flores v. Michael J Astrue, No. 2:2012cv01927 - Document 20 (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 EDWARD FLORES, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. CV 12-01927-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 14, 2012, seeking review of 19 the denial of plaintiff s application for a period of disability, 20 disability insurance benefits ( DIB ), and supplemental security income 21 ( SSI ). On April 24, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), 22 to proceed before the undersigned United States 23 Magistrate Judge. The parties filed a Joint Stipulation on January 2, 24 2013, in which: plaintiff seeks an order reversing the Commissioner s 25 26 27 28 1 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 decision and remanding this case for the payment of benefits or, 2 alternatively, 3 Commissioner requests that his decision be affirmed or, alternatively, 4 remanded for further administrative proceedings. for further administrative proceedings; and the 5 6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 7 8 Plaintiff filed an application for SSI on March 10, 2009, and an 9 application for a period of disability and DIB on March 23, 2009. 10 (Administrative Record ( A.R. ) 15.) Plaintiff, who was born on April 11 22, 1956,2 claims to have been disabled since May 5, 2007 (A.R. 17), due 12 to depression, high blood pressure, diabetes, and back and neck problems 13 (A.R. 53). 14 truck driver and forklift operator. Plaintiff has past relevant work experience as a trailer (A.R. 22.) 15 16 After the Commissioner denied plaintiff s claims initially (A.R. 17 53-57), plaintiff requested a hearing (A.R. 59-60). On August 23, 2010, 18 plaintiff, who was represented by counsel, appeared and testified at a 19 hearing before 20 ALJ ). (A.R. 28-48.) 21 (Id.) 22 24), and the Appeals Council subsequently denied plaintiff s request for 23 review of the ALJ s decision (A.R. 1-4). 24 in this action. Administrative Law Judge John C. Tobin (the Vocational expert E. Kurata also testified. On September 2, 2010, the ALJ denied plaintiff s claim (A.R. 15- That decision is now at issue 25 26 27 28 2 On the alleged onset date, plaintiff was 51 years old, which is defined as an individual closely approaching advanced age. (A.R. 22; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff meets the insured status requirements 4 of the Social Security Act through December 31, 2012, and has not 5 engaged in substantial gainful activity since May 5, 2007, the alleged 6 onset date of his disability. 7 plaintiff 8 diabetes, and high blood pressure.3 9 that plaintiff does not have an impairment or combination of impairments 10 that meets or medically equals one of the listed impairments in 20 11 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 12 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). has the severe (A.R. 17.) impairments of (Id.) The ALJ determined that neck and back disorder, The ALJ concluded, however, (A.R. 19.) 13 14 After reviewing the record, the ALJ determined that plaintiff has 15 the residual functional capacity ( RFC ) to perform light work as 16 defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following 17 limitations: 18 19 [Plaintiff must] have the opportunity to change position every 20 half hour and sit/stand/walk for 4 hours in an 8 hour period; 21 occasionally 22 cervical rotation, flexion, and extension. 23 pain, [plaintiff] is limited in attention and concentration 24 that waxes and waynes [sic] from mild to fully moderate with 25 two factors such as the severity of the pain and severity of stoop, kneel, crouch, or crawl; occasional As a result of 26 3 27 28 The ALJ also determined that plaintiff s depression is nonsevere, because it does not cause more than minimal limitation in [plaintiff] s ability to perform basic mental work activities . . . . (A.R. 17.) 3 1 the side effects from the treatment of pain. As such, 2 [plaintiff] is able to perform simple, repetitive tasks and 3 work with occasional public contact and solitary, not teamwork 4 type environments. 5 6 (A.R. 19.) 7 8 9 The ALJ found that plaintiff is unable to perform any past relevant work. (A.R. 22.) However, based upon his RFC assessment for plaintiff 10 and after having considered plaintiff s age, education,4 work experience, 11 and the testimony of the vocational expert, the ALJ found there are 12 jobs that exist in significant numbers in the national economy that 13 [plaintiff] can perform, including that of inspector/hand packager, 14 shoe packer, and assembler. 15 concluded that plaintiff has not been under a disability, as defined in 16 the Social Security Act, from May 5, 2007, through the date of the ALJ s 17 decision. (A.R. 23.) Accordingly, the ALJ (Id.) 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 22 decision to determine whether it is free from legal error and supported 23 by substantial evidence in the record as a whole. 24 F.3d 625, 630 (9th Cir. 2007). 25 evidence as a reasonable mind might accept as adequate to support a 26 conclusion. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than 27 4 28 The ALJ found that plaintiff has limited education and is able to communicate in English. (A.R. 22.) 4 1 a mere scintilla but not necessarily a preponderance. Connett v. 2 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 3 record can constitute substantial evidence, only those reasonably drawn 4 from the record will suffice. 5 1066 (9th Cir. 2006)(citation omitted). While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 6 7 Although this Court cannot substitute its discretion for that of 8 the Commissioner, the Court nonetheless must review the record as a 9 whole, weighing both the evidence that supports and the evidence that 10 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of 11 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 13 responsible for determining credibility, resolving conflicts in medical 14 testimony, and for resolving ambiguities. 15 1035, 1039 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 16 17 The Court will uphold the Commissioner s decision when the evidence 18 is susceptible to more than one rational interpretation. 19 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 20 review only the reasons stated by the ALJ in his decision and may not 21 affirm the ALJ on a ground upon which he did not rely. 22 at 630; see also Connett, 340 F.3d at 874. 23 the Commissioner s decision if it is based on harmless error, which 24 exists only when it is clear from the record that an ALJ s error was 25 inconsequential to the ultimate nondisability determination. Robbins 26 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 27 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 28 at 679. 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 DISCUSSION 2 3 Plaintiff claims the ALJ erred 4 properly: 5 plaintiff s subjective symptom testimony. 6 by not considering (1) the opinion of plaintiff s treating physician; and (2) Stip. ) at 3-6, 9-17, 19-21.) (Joint Stipulation ( Joint 7 8 9 10 I. The ALJ Failed To Set Forth Appropriate Reasons For Rejecting The Opinion Of Plaintiff s Treating Physician And Needs To Reassess Plaintiff s RFC On Remand. 11 12 It is the responsibility of the ALJ to analyze evidence and resolve 13 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 14 (9th Cir. 1989). 15 assessing a social security claim, [g]enerally, a treating physician s 16 opinion carries more weight than an examining physician s, and an 17 examining physician s opinion carries more weight than a reviewing 18 physician s. 19 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 20 21 The opinions of treating physicians are entitled to the greatest 22 weight, because the treating physician is hired to cure and has a better 23 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 24 a treating physician s opinion is not contradicted by another physician, 25 it may be rejected only for clear and convincing reasons. 26 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 27 doctor, a treating physician s opinion may only be rejected if the ALJ 28 provides specific and legitimate reasons supported by substantial 6 Lester v. When contradicted by another 1 evidence in the record. Id. 2 3 In a June 25, 2008 Permanent and Stationary Report, plaintiff s 4 treating physician, Khalid B. Ahmed, M.D., an orthopedic surgeon, 5 diagnosed plaintiff with: 6 cervical 7 radiculitis/radiculopathy; (2) thoracic spine sprain/strain and disk 8 lesion with radiculopathy; (3) lumbar spine sprain/strain and disk 9 lesion with radiculopathy; (4) anxiety and depressive illness related to 10 chronic pain and trauma; (5) intermittent insomnia related to depressive 11 illness 12 control. 13 spine discomfort is best described as constant, slight, intermittent, 14 moderate-to-severe, reaching moderate-to-severe level with repetitive 15 use of the neck for 15 minutes to 20 minutes. 16 respect to plaintiff s thoracic spine pain, Dr. Ahmed described it as 17 constant, 18 reaching 19 stooping, or lifting. 20 described as constant, slight-to moderate, intermittent, moderate-to- 21 severe, reaching moderate-to-severe level with 30 minutes to 35 minutes 22 of standing, 30 minutes to 35 minutes of walking, 30 minutes to 35 23 minutes of sitting and any attempts in bending, stooping, or lifting. 24 (A.R. 301.) 25 permanent and stationary with . . . permanent partial disability from 26 this point onwards. spine and pain; (1) chronic pain syndrome secondary to sprain/strain and (6) (A.R. 299-300.) slight to and diabetes disk type 2, lesion which with is under Dr. Ahmed found that plaintiff s cervical moderate, moderate-to-severe (Id.) intermittent, level with any (A.R. 300.) With moderate-to-severe, attempts in bending, Plaintiff s lumbar spine discomfort was Lastly, Dr. Ahmed noted that plaintiff s status was (A.R. 300.) 27 28 In his decision, the ALJ gives little weight to the opinions of 7 1 the consultative examiner and the medical consultant, who opined that 2 plaintiff could perform medium work, because, according to the ALJ, 3 there is evidence which supports more limitations than offered by the 4 [consultative examiner (and medical consultant)]. 5 finding, the ALJ cites, inter alia, the June 25, 2008 Report by Dr. 6 Ahmed and notes that Dr. Ahmed found that plaintiff can use his neck 7 repetitively for 15 to 20 minutes and has constant, slight to moderate, 8 intermittent, moderate to severe, reaching moderate to severe level of 9 discomfort with any attempts in bending, stooping, or lifting and is (A.R. 21.) In so 10 able to stand, walk, and sit for 30 to 35 minutes. (A.R. 22; citations 11 omitted.) 12 finding(s) of temporary total disability, the ALJ states that he gave 13 some weight to [Dr. Ahmed s] standing, walking, sitting, and postural 14 limitations. While the ALJ notes that he was not bound by Dr. Ahmed s (Id.) 15 16 As plaintiff notes, however, while the ALJ s RFC assessment for 17 plaintiff is consistent with Dr. Ahmed s sitting, standing, and walking 18 limitations 19 limitation, the ALJ s RFC assessment does not appear to be consistent 20 with Dr. Ahmed s opinion that plaintiff would experience moderate-to- 21 severe discomfort with any bending, stooping, or lifting. 22 words, because the ALJ found that plaintiff could perform light work, 23 which contemplates lifting up to 20 pounds at a time with frequent 24 lifting or carrying of objects weighing up to 10 pounds, 20 C.F.R. §§ 25 404.1567(b) and 416.9679(b)(emphasis added), and the ALJ found that 26 plaintiff could occasionally stoop (A.R. 19), the ALJ s RFC assessment 27 appears to be at odds with Dr. Ahmed s opinion. 28 accept the full extent of Dr. Ahmed s opinion, the ALJ may not reject and may be consistent 8 with Dr. Ahmend s neck use In other While the ALJ need not 1 it, or significant parts of it, without giving specific and legitimate 2 reasons for so doing. The ALJ s failure to proffer any reason,5 let 3 alone reason, 4 constitutes reversible error.6 an appropriate for rejecting Dr. Ahmed s opinion 5 6 II. The ALJ Gave Clear And Convincing Reasons For Finding 7 Plaintiff s 8 Subjective Symptom Testimony To Be Not Credible. 9 10 Once a disability claimant produces objective medical evidence of 11 an underlying impairment that is reasonably likely to be the source of 12 claimant s subjective symptom(s), all subjective testimony as to the 13 14 15 16 17 18 19 20 21 22 23 24 5 Although not entirely clear, to the extent the ALJ rejects Dr. Ahmed s opinion because he also rendered an opinion on the matter of ultimate disability, the ALJ s reasoning is misguided. While it is true that a treating physician s opinion on the matter of ultimate disability is not determinative or entitled to special weight, a treating physician s medical opinions are generally [entitled to] more weight. Boardman v. Astrue, 286 Fed. Appx. 397, 399 (9th Cir. 2008)(citing 20 C.F.R. § 404.1527(d)(2)). A medical opinion reflect[s] judgments about the nature and severity of [a claimant s] impairment(s), including [a claimant s] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant s] physical or mental restrictions. Id. (citing 20 C.F.R. § 404.1527(a)(2)). Here, beyond finding that plaintiff was temporarily disabled and/or unable to work, Dr. Ahmed diagnosed plaintiff with various impairments and found that plaintiff had resulting limitations and restrictions, as noted in detail supra. Thus, the ALJ s apparent rejection of Dr. Ahmed s opinion on the ground that it also contained an opinion regarding the ultimate issue of disability is not legitimate. See Boardman, 286 Fed. Appx. at 399 (finding that while [the fact that the treating physician expressed an opinion regarding Boardman s ultimate disability and residual functional] may be a specific reason to reject a treating physician s medical opinion, it is not a legitimate one ). 25 6 26 27 28 Although the Commissioner now offers other reasons to explain the ALJ s rejection of the opinion of Dr. Ahmed, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 ( We review only the reasons provided by the ALJ in the disability determination and may not affirm on a ground upon which he did not rely ). 9 1 severity of the symptoms must be considered. 2 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 3 (9th 4 (explaining how pain and other symptoms are evaluated). 5 ALJ makes 6 thereof, he or she may only find an applicant not credible by making 7 specific findings as to credibility and stating clear and convincing 8 reasons for each. 9 considered in weighing a claimant s credibility include: Cir. 1991); a see also finding of 20 C.F.R. §§ malingering based Moisa v. Barnhart, 367 404.1529(a), on 416.929(a) [U]nless an affirmative Robbins, 466 F.3d at 883. evidence The factors to be (1) the 10 claimant s reputation for truthfulness; (2) inconsistencies either in 11 the claimant s testimony or between the claimant s testimony and her 12 conduct; (3) the claimant s daily activities; (4) the claimant s work 13 record; and (5) testimony from physicians and third parties concerning 14 the nature, severity, and effect of the symptoms of which the claimant 15 complains. 16 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 17 18 An ALJ may rely on a claimant s daily activities to support an 19 adverse credibility determination when those activities: (1) contradict 20 [claimant s] 21 transferable work skills. 22 credibility 23 substantial part of his or her day performing household chores or other 24 activities that are transferable to a work setting. 25 80 F.3d 1273, 1284 n.7 (9th Cir. 1996). 26 be utterly incapacitated to be eligible for benefits . . . and many 27 home activities are not easily transferable to what may be the more 28 grueling environment of the workplace, where it might be impossible to other may be testimony ; or (2) meet the threshold for Orn, 495 F.3d at 639. Thus, plaintiff s discounted if 10 he or she is able to spend a Smolen v. Chater, A claimant, however, need not 1 periodically rest or take medication. Fair v. Bowen, 885 F.2d 597, 603 2 (9th Cir. 1989)(internal citations omitted). 3 4 In a functional report dated April 6, 2009, plaintiff reported that 5 he: walks for 15-20 minutes a day; drives to the store to shop for 6 groceries; makes dinner; cleans up after himself; sometimes picks up 7 his children and grandson from school and watches them; and performs 8 light household chores, including washing the dishes, doing the laundry, 9 ironing, and sweeping the kitchen. (A.R. 155, 157.) Plaintiff also 10 stated that he watches televisions, reads, naps, and goes for walks 11 after dinner. 12 three to four times a day and travels either by foot or car. 13 158.) 14 it takes him five minutes to half an hour to shop. 15 plaintiff reported that he can pay bills, handle a savings account, 16 count change, and use a checkbook/money orders. 17 indicated that his illness, injuries, or conditions affect his ability 18 to: 19 concentrate, 20 160.) 21 to ten minutes. (A.R. 155.) Plaintiff reported that he goes outside (A.R. He also reported that when he goes to the stores for groceries, lift, walk, climb remember, stairs, and squat, get along bend, with (Id.) Additionally, (Id.) stand, Plaintiff sit, kneel, others. (A.R. Plaintiff also reported that he can only pay attention for five (Id.) 22 23 At the August 23, 2010 hearing, plaintiff testified that he: can 24 sit for 10-15 minutes at a time; stand for 20 minutes at a time; and 25 drives once or twice a month. 26 he is able to perform household chores, including light sweeping and 27 taking out the trash. (A.R. 38.) Plaintiff also testified that (A.R. 39.) 28 11 1 As noted supra, the ALJ found that plaintiff has the severe 2 impairments of neck and back disorder[s], diabetes, and high blood 3 pressure. (A.R. 17.) The ALJ also found that [plaintiff] s medically 4 determinable impairments could reasonably be expected to cause the 5 alleged symptoms. 6 malingering 7 discrediting 8 convincing. by (A.R. 20.) plaintiff. plaintiff s Further, the ALJ cited no evidence of Accordingly, subjective the complaints ALJ s must reason for clear and concerning the be 9 10 The ALJ found that [plaintiff] s statements 11 intensity, persistence and limiting effects of [his] symptoms are not 12 credible to the extent they are inconsistent with [the ALJ s RFC] 13 assessment. 14 not credible, because: 15 of pain during the hearing, . . . [but plaintiff] admitted that he did 16 not take his medication that morning ; (2) 17 activities are not limited to the extent one would expect, given 18 [plaintiff] s complaints of disabling symptoms and limitations ; and (3) 19 [plaintiff] s subjective complaints and alleged limitations are out of 20 proportion to the objective clinical findings and observed functional 21 restrictions. (A.R. 20.) Specifically, the ALJ found plaintiff to be (1) [plaintiff] reported that he was in a lot plaintiff s described daily (Id.) 22 23 The ALJ s first reason for finding plaintiff to be not credible is 24 unavailing. As the ALJ properly notes, plaintiff testified that, 25 notwithstanding his pain, he did not take his medications the morning of 26 the administrative hearing. 27 why he did not take his medications, however, it appears that he was cut 28 off and/or interrupted by the ALJ. (Id.) Shortly thereafter, plaintiff (A.R. 35.) 12 Before plaintiff could explain 1 explained that his medications cause him to have memory problems and 2 feel drowsy and nauseous. (Id.) Upon hearing plaintiff s side effects, 3 the ALJ appeared to acknowledge the fact that plaintiff s drowsiness 4 could interfere with the hearing. 5 drowsiness it would interrupt, interfere with the hearing. ) 6 ALJ may consider an unexplained or inadequately explained failure to 7 seek treatment or to 8 assessing a claimant s credibility, Tommasetti v. Astrue, 533 F.3d 1035, 9 1039 (9th Cir. 2008), in this case, plaintiff provided a legitimate 10 reason for choosing not to take his medication -- to wit, that it would 11 cause him to feel drowsy during the hearing. 12 reasoning cannot constitute a clear and convincing reason for finding 13 plaintiff to be not credible. (A.R. 36, noting that so if there s While an follow a prescribed course of treatment in Accordingly, the ALJ s 14 15 The ALJ s second reason for discrediting plaintiff -- to wit, that 16 plaintiff s described daily activities are not limited to the extent 17 one would expect, given [plaintiff] s complaints of disabling symptoms 18 and limitations -- is, however, a clear and convincing reason for 19 finding plaintiff to be not credible. 20 plaintiff reported that he does light sweeping, takes out the kitchen 21 trash, drive[s], picks up his children from school, takes care of 22 his children, clean[s] up after himself, prepares his own meals on 23 a 24 cleaning, ironing, and sweeping the kitchen, and shops in stores for 25 food and household items. 26 addition, the ALJ noted that plaintiff is able to: 27 change, handle a savings account, and use a checkbook/money order ; and 28 watch[] television with no indication that he has difficulty following daily basis, performs household As the ALJ notes in his decision, chores such as laundry, light (A.R. 20; internal citations omitted.) 13 In pay bills, count 1 a television program. (Id.) Plaintiff s daily activities go beyond 2 what would be expected of an individual who, like plaintiff, claims to 3 be in so much pain as to be unable, for example, to concentrate for more 4 than five minutes. 5 1997)(stating that an ALJ may disbelieve a claimant if there are 6 inconsistencies 7 activities and his testimony about the nature, effect, or severity of 8 his symptoms); Fair, 885 F.2d at 603 (noting that if, despite his 9 claims of pain, a claimant is able to perform household chores and other 10 activities that involve many of the same physical tasks as a particular 11 type of job, it would not be farfetched for an ALJ to conclude that the 12 claimant s pain does not prevent the claimant from working ). 13 the ALJ properly considered plaintiff s daily activities as a factor in 14 assessing plaintiff s credibility. See Light v. SSA, 119 F.3d 789, 793 (9th Cir. between the claimant s testimony about his daily As such, 15 16 Lastly, the ALJ properly considered the lack of objective evidence 17 and objective functional restrictions 18 plaintiff s 19 examiner s May 30, 2009 report, the ALJ noted that, although plaintiff 20 had some tenderness in his lower lumbar region, his physical examination 21 was generally normal. 22 plaintiff had a negative straight leg raise test at 90 degrees, 5/5 23 strength in all extremities, and that plaintiff s sensory was grossly 24 intact and symmetrical to light touch. 25 addition, the ALJ noted that [t]here [wa]s no evidence of severe disuse 26 muscle atrophy that would be compatible with [plaintiff] s alleged 27 inactivity 28 physician found plaintiff to be as functionally limited as he claimed. credibility. and For (A.R. 21.) inability to as example, a factor citing the in assessing consultative The consultative examiner found that function. 14 (Id.; citations omitted.) (A.R. 20.) Further, In no 1 While the failure of the medical record to corroborate a claimant s 2 subjective 3 sufficient basis for rejecting such testimony, it is a factor that the 4 ALJ may take into account when making a credibility determination. 5 Burch, 400 F.3d at 691; Rollins v. Massanari, 261 F.3d 853, 856 (9th 6 Cir. 2001). 7 supporting plaintiff s subjective complaints and alleged limitations as 8 a factor in assessing his credibility. symptom testimony fully is not, by itself, a legally See Thus, the ALJ properly considered the lack of evidence 9 10 Accordingly, because the ALJ provided clear and convincing reasons 11 for finding plaintiff s testimony to be not credible, no reversible 12 error was committed. 13 14 III. Remand Is Required. 15 16 The decision whether to remand for further proceedings or order an 17 immediate award of benefits is within the district court s discretion. 18 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 19 useful purpose would be served by further administrative proceedings, or 20 where the record has been fully developed, it is appropriate to exercise 21 this discretion to direct an immediate award of benefits. 22 ( [T]he decision of whether to remand for further proceedings turns upon 23 the likely utility of such proceedings. ). 24 outstanding issues that must be resolved before a determination of 25 disability can be made, and it is not clear from the record that the ALJ 26 would be required to find the claimant disabled if all the evidence were 27 properly evaluated, remand is appropriate. 28 15 Where no Id. at 1179 However, where there are Id. at 1179-81. 1 Remand is the appropriate remedy to allow the ALJ the opportunity 2 to remedy the above-mentioned deficiency and error.7 3 must credit Dr. Ahmed s opinion or provide appropriate reasons supported 4 by substantial evidence for rejecting it. 5 need to reassess plaintiff s RFC, in which case additional testimony 6 from a vocational expert likely will be needed to determine what work, 7 if any, plaintiff can perform. 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// On remand, the ALJ After doing so, the ALJ may 18 19 20 21 22 23 24 25 26 27 28 7 Plaintiff has requested that this Court award benefits under Smolen, supra, because: (1) the ALJ . . . failed to provide legally sufficient reasons for rejecting the [opinion of Dr. Ahmed]; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. (Joint Stip. at 5.) It is well established that the court may direct an award of benefits where the record has been fully developed and where further proceedings would serve no useful purpose. Smolen, 80 F.3d at 1292. In this case, however, it is not apparent to the Court whether Dr. Ahmed s opinion, particularly his opinion regarding plaintiff s bending, stooping, and lifting limitations, would require a finding of disability. As plaintiff properly notes, light work -- the type of work the ALJ found plaintiff capable of performing -- typically involves occasional bending and stooping. (Joint Stip. at 5.) However, it is unclear to the Court whether all light work involves such limitations. Accordingly, because further proceedings would serve a useful purpose, the Court declines to award benefits at this time. 16 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is AFFIRMED, in part, and REVERSED, in 5 part, and this case is REMANDED for further proceedings consistent with 6 this Memorandum Opinion and Order. 7 8 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 9 copies of this Memorandum Opinion and Order and the Judgment on counsel 10 for plaintiff and for defendant. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 DATED: May 3, 2013 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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