Susie Duran v. Michael J Astrue, No. 5:2007cv01104 - Document 16 (C.D. Cal. 2008)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Paul L. Abrams: IT IS HEREBY ORDERED that: (1) plaintiffs request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. (sl)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 SUSIE DURAN, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 07-1104-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on September 11, 2007, seeking review of the Commissioner s 22 denial of her application for Supplemental Security Income payments. The parties filed Consents 23 to proceed before the undersigned Magistrate Judge on September 20, 2007, and October 1, 24 2007. Pursuant to the Court s Order, the parties filed a Joint Stipulation on May 9, 2008, that 25 addresses their positions concerning the disputed issues in the case. The Court has taken the 26 Joint Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on June 11, 1959. [Administrative Record ( AR ) at 50-51.] She has an 4 eleventh grade education [AR at 63], and has no past relevant work experience. [AR at 16-17, 5 58, 82-83.] 6 On October 7, 2005, plaintiff protectively filed her application for Supplemental Security 7 Income payments, alleging that she has been disabled since October 1, 2003, due to carpal tunnel 8 syndrome, diabetes, tendinitis in her right shoulder, foot problems, and depression. [AR at 50-51, 9 57, 64.] After her application was denied initially and on reconsideration, plaintiff requested a 10 hearing before an Administrative Law Judge ( ALJ ). [AR at 19-20, 27-28, 31-36, 37-41.] A 11 hearing was held on April 23, 2007, at which time plaintiff appeared with counsel and testified on 12 her own behalf. [AR at 210-17.] On April 26, 2007, the ALJ determined that plaintiff was not 13 disabled. [AR at 8-18.] Plaintiff requested review of the hearing decision. [AR at 7.] When the 14 Appeals Council denied plaintiff s request for review on July 18, 2007, the ALJ s decision became 15 the final decision of the Commissioner. [AR at 4-6.] This action followed. 16 17 18 III. 19 STANDARD OF REVIEW 20 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 21 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 22 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 23 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 24 In this context, the term substantial evidence means more than a mere scintilla but less 25 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 26 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 27 1257. When determining whether substantial evidence exists to support the Commissioner s 28 decision, the Court examines the administrative record as a whole, considering adverse as well 2 1 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 3 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 4 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 5 6 IV. 7 THE EVALUATION OF DISABILITY 8 Persons are disabled for purposes of receiving Social Security benefits if they are unable 9 to engage in any substantial gainful activity owing to a physical or mental impairment that is 10 expected to result in death or which has lasted or is expected to last for a continuous period of at 11 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 12 13 A. THE FIVE-STEP EVALUATION PROCESS 14 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 15 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 16 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 17 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 18 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 19 substantial gainful activity, the second step requires the Commissioner to determine whether the 20 claimant has a severe impairment or combination of impairments significantly limiting her ability 21 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 22 If the claimant has a severe impairment or combination of impairments, the third step requires 23 the Commissioner to determine whether the impairment or combination of impairments meets or 24 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 25 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 26 If the claimant s impairment or combination of impairments does not meet or equal an impairment 27 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 28 sufficient residual functional capacity to perform her past work; if so, the claimant is not disabled 3 1 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 2 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 3 prima facie case of disability is established. The Commissioner then bears the burden of 4 establishing that the claimant is not disabled, because she can perform other substantial gainful 5 work available in the national economy. The determination of this issue comprises the fifth and 6 final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 7 n.5; Drouin, 966 F.2d at 1257. 8 9 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 10 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 11 gainful activity since the alleged onset date of the disability. [AR at 13.] At step two, the ALJ 12 concluded that plaintiff has the following severe impairments: musculoskeletal system disorder, 13 diabetes mellitus, and obesity disorder. [Id.] At step three, the ALJ determined that plaintiff s 14 impairments do not meet or equal any of the impairments in the Listing. [AR at 13-14.] The ALJ 15 further found that plaintiff retained the residual functional capacity ( RFC )1 to perform a full range 16 of light work2 with the following additional limitations: [plaintiff] can occasionally lift and/or carry up 17 to 20 pounds and frequently 10 pounds; within an eight hour workday, she can stand and/or walk 18 for a total of about six hours; and sit for about six hours. Additionally, she is able to do gripping, 19 grasping, feeling, and fingering activities on a frequent basis, but not continuous basis. [Plaintiff] 20 should also avoid concentrated exposure to extreme cold and extreme heat. [AR at 14.] At step 21 four, the ALJ concluded that plaintiff had no past relevant work. [AR at 16-17.] At step five, the 22 ALJ found, using the Medical-Vocational Guidelines, that there are a significant number of jobs 23 24 1 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b) and 416.967(b). 4 1 in the national economy that plaintiff is capable of performing. [AR at 17.] Accordingly, the ALJ 2 determined that plaintiff is not disabled. [AR at 11-18.] 3 4 V. 5 THE ALJ S DECISION 6 Plaintiff contends that the ALJ failed to: (1) properly consider the treating physician s 7 opinion; (2) properly consider the lay witness statements; and (3) obtain vocational expert 8 testimony on the effect of plaintiff s non-exertional impairments. Joint Stipulation ( Joint Stip. ) at 9 2-3. As set forth below, the Court agrees with plaintiff, in part, and remands the matter for further 10 proceedings. 11 12 TREATING PHYSICIAN S OPINION 13 In evaluating medical opinions, the case law and regulations distinguish among the opinions 14 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 15 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 16 nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also 17 Lester, 81 F.3d at 830. As a general rule, the opinions of treating physicians are given greater 18 weight than those of other physicians, because treating physicians are employed to cure and 19 therefore have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 20 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing 21 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although the treating physician s 22 opinion is entitled to great deference, it is not necessarily conclusive as to the question of 23 disability. Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989). 24 Where the treating physician s opinion is uncontradicted, it may be rejected only for clear 25 and convincing reasons. Lester, 81 F.3d at 830. Where the treating physician s opinion is 26 contradicted by another physician, the ALJ may only reject the opinion of the treating physician 27 if the ALJ provides specific and legitimate reasons for doing so that are based on substantial 28 evidence in the record. See Lester, 81 F.3d at 830; see also 20 C.F.R. §§ 404.1527(d), 5 1 416.927(d) (requiring that Social Security Administration always give good reasons in [the] notice 2 of determination or decision for the weight [given to the] treating source s opinion ); Social Security 3 Ruling3 96-2p ( the notice of the determination or decision must contain specific reasons for the 4 weight given to the treating source s medical opinion, supported by the evidence in the case 5 record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the 6 adjudicator gave to the treating source s medical opinion and the reasons for that weight. ). 7 An examining physician s opinion based on independent clinical findings that differ from the 8 findings of a treating physician may constitute substantial evidence. Orn v. Astrue, 495 F.3d 625, 9 632 (9th Cir. 2007) ( Independent clinical findings can be either (1) diagnoses that differ from 10 those offered by another physician and that are supported by substantial evidence, (citation 11 omitted) or (2) findings based on objective medical tests that the treating physician has not herself 12 considered. (citation omitted)). However, even if an examining physician s opinion constitutes 13 substantial evidence, the treating physician s opinion is still entitled to deference.4 See id.; see 14 also SSR 96-2p (a finding that a treating physician s opinion is not entitled to controlling weight 15 does not mean that the opinion is rejected). 16 Finally, [t]he opinion of a nonexamining physician cannot by itself constitute substantial 17 evidence that justifies the rejection of the opinion of either an examining physician or a treating 18 physician. Lester, 81 F.3d at 831 (emphasis in original). The opinion of a non-examining 19 physician may serve as substantial evidence when it is consistent with other independent evidence 20 21 22 23 24 25 26 27 28 3 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 4 In many cases, a treating source s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight. SSR 96-2p. In determining what weight to accord the opinion of the treating physician, the ALJ is instructed to consider the following factors: length of the treatment relationship and frequency of examination; nature and extent of the treatment relationship; the degree to which the opinion is supported by relevant medical evidence; consistency of the opinion with the record as a whole; specialization; and any other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(d)(2)(6), 416.927(d)(2)-(6). 6 1 in the record. Id. at 830-31. A report of a non-examining, non-treating physician should be 2 discounted and is not substantial evidence when contradicted by all other evidence in the record. 3 See Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) (quoting Millner v. Schweiker, 725 4 F.2d 243, 245 (4th Cir. 1984)). 5 Plaintiff argues that the ALJ failed to consider the treating physician s opinion. Specifically, 6 plaintiff asserts that the ALJ did not make any findings concerning the Medical Opinion Re: Ability 7 to Do Work-Related Activities (Physical) completed by the treating physician. Joint Stip. at 3-4. 8 As discussed below, the Court agrees with plaintiff. 9 The record contains a Medical Opinion Re: Ability to Do Work-Related Activities (Physical) 10 ( Medical Opinion form ) dated August 21, 2006. [AR at 206-09.] The signature on the Medical 11 Opinion form is not legible,5 and the author of the form cannot otherwise be discerned from the 12 document itself. [AR at 206-09.] Nor does the record definitively reflect the identity of the author. 13 The author of the Medical Opinion form indicated that plaintiff has the following limitations: (1) she 14 can lift and carry on an occasional or frequent basis less than 10 pounds; (2) stand and walk (with 15 normal breaks) for about two hours during an eight-hour day, and (3) sit (with normal breaks) for 16 about four hours during an eight-hour day. [AR at 206.] The author also indicated that plaintiff can 17 sit for sixty minutes before changing position, stand for thirty minutes before changing position, 18 and must walk every sixty minutes for a duration of five minutes.6 [AR at 207.] As for the 19 performance of certain postural activities, the author of the form opined that plaintiff can 20 5 21 22 23 24 25 26 27 28 Although the signature on the Medical Opinion form is illegible, plaintiff contends that it was filled out by her treating physician. See Joint Stip. at 3-4. 6 The Medical Opinion form is four pages in length. Two of the four pages contain the same questions, i.e., questions 5-8. The responses to the questions differ, however. [Compare AR at 207 with AR at 208.] Plaintiff in the Joint Stipulation (Joint Stip. at 3) appears to rely on the limitations set forth in the Administrative Record at 208, which cites back pain as the medical condition supporting the limitations. This is not an impairment asserted by plaintiff in her application for payments. Given that the medical findings supporting the limitations noted in the Administrative Record at 207, i.e., diabetes with neuropathies and carpal tunnel syndrome, are consistent with the medical findings listed in question 9B of the Medical Opinion, as well as with the medical findings noted in the record, and the fact that the handwriting at AR 207 is identical to that at AR 209, but not at AR 208, the Court references the limitations noted at AR 207, not AR 208. [AR at 207, 209.] 7 1 occasionally twist, stoop (bend), and climb stairs, but can never crouch or climb ladders. [Id.] The 2 author further opined that the physical functions of handling (gross manipulation), fingering (fine 3 manipulation), and feeling are affected by plaintiff s impairments. [AR at 209.] In support of the 4 physical functional limitations, the author of the form noted carpal tunnel syndrome and diabetes 5 mellitus. [Id.] As for environmental restrictions, the author noted that plaintiff needs to avoid 6 concentrated exposure to wetness because of the high risk of fungal infection secondary to 7 diabetes. [AR at 209.] Furthermore, the author indicated that plaintiff s impairments or treatment 8 would cause her to be absent from work about twice a month. [Id.] 9 In the decision, the ALJ did not discuss the August 21, 2006, Medical Opinion form, or any 10 of the findings made therein. Rather, in determining the degree of plaintiff s functional limitations 11 resulting from her impairments (the ALJ found that plaintiff had severe impairments of 12 musculoskeletal system disorder, diabetes mellitus, and obesity disorder), the ALJ only specifically 13 discussed and adopted the opinions of the State Agency physicians. [AR at 16, 193-202.] The 14 ALJ noted that the State Agency physicians findings describe a capacity to perform work 15 activities at a light exertional level with some additional limitations. [AR at 16.] 16 The ALJ s failure to specifically address the findings set forth in the Medical Opinion form 17 and to discuss the weight he assigned to those findings was error.7 Although the ALJ indicated 18 19 20 21 22 23 24 25 26 27 28 7 Defendant argues that the ALJ was not required to address the findings in the Medical Opinion form because (1) the form was signed by an unidentified medical provider, and the signature is illegible; (2) it is not evident from the form that the person who prepared it was a physician, let alone a treating physician; and (3) the treatment records suggest only mild to conservative treatment. Joint Stip. at 4-7. While the signature on the Medical Opinion form is illegible, making the identity of the author of the form unknown, and although the treating records may suggest conservative treatment, the ALJ in his decision did not present these reasons as a basis for disregarding the Medical Opinion form. Indeed, the ALJ made no reference whatsoever to the findings in the Medical Opinion form. As such, defendant s post hoc attempt to justify the ALJ s failure to address the findings in the Medical Opinion form is not sufficient to cure the error. See Vista Hill Foundation, Inc. v. Heckler, 767 F.2d 556, 559 (9th Cir. 1985) (a reviewing court may affirm an administrative decision only on grounds articulated by the agency); see also Barbato v. Commissioner of Social Sec. Admin., 923 F. Supp. 1273, 1276 (C.D. Cal. 1996) (a court may remand if the decision of the ALJ as to a claimant s entitlement to benefits on its face does not adequately explain how a conclusion was reached, even if Social Security Administration can offer proper post hoc explanations for such unexplained conclusions). 8 1 that he gave considerable weight to the opinions of the State Agency physicians and adopted 2 [t]heir opinion relative to [plaintiff s] functional limitations as plaintiff s residual functional capacity, 3 the ALJ s acceptance of the State Agency findings is insufficient here. The RFC assessment must 4 always consider and address medical source opinions, and if the assessment conflicts with an 5 opinion from a medical source, the ALJ must explain why the opinion was not adopted. See SSR 6 96-8p; Thompson v. Barnhart, 2006 WL 709795, at *13 (E.D. Pa. March 15, 2006) ( Since it is 7 apparent that the ALJ cannot reject evidence for no reason or for the wrong reason, an 8 explanation from the ALJ of the reason why probative evidence has been rejected is required so 9 that a reviewing court can determine whether the reasons for rejection were improper. ) (quoting 10 Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981)). The ALJ should have, at a minimum, 11 considered the findings in the Medical Opinion form, and explained the weight he gave to those 12 findings. This is especially true where the findings in the Medical Opinion form are inconsistent 13 with the ALJ s conclusion that plaintiff can perform a full range of light work with some additional 14 limitations. 15 completely ignored the August 21, 2006, Medical Opinion form in making his RFC determination. 16 The ALJ s RFC assessment incorporates fewer restrictions/limitations than those found by the 17 author of the Medical Opinion form. [AR at 14.] For instance, the ALJ relied, in part, on the 18 opinion of a State Agency physician, which included, inter alia, a finding that plaintiff can stand 19 and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday and a 20 finding that plaintiff can lift and/or carry 20 pounds occasionally and 10 pounds frequently [AR at 21 194], but failed to even mention the findings in the Medical Opinion form that plaintiff can stand 22 and walk (with normal breaks) only for about two hours during an eight-hour day and can lift and 23 carry only less than 10 pounds on both an occasional and frequent basis. [AR at 206.] The ALJ 24 cannot point to only those portions of the treatment record that bolster his findings. See Gallant, 25 753 F.2d at 1456 (error for an ALJ to ignore competent evidence in the record in order to justify 26 his conclusion); see also Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) ( [A]n ALJ must 27 weigh all the evidence and may not ignore evidence that suggests an opposite conclusion. ) 28 (citation omitted); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not permitted [AR at 14, 206-09.] Instead, the ALJ discussed other medical evidence and 9 1 to reach a conclusion simply by isolating a specific quantum of supporting evidence ). As such, 2 the ALJ erred by failing to address competent evidence in the record. 3 Moreover, the presence of the Medical Opinion form triggered the ALJ s duty to further 4 develop the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) ( Ambiguous 5 evidence, or the ALJ s own finding that the record is inadequate to allow for proper evaluation of 6 the evidence, triggers the ALJ s duty to conduct an appropriate inquiry. ) (quoting Smolen, 80 7 F.3d at 1288). In making a determination of disability, the ALJ must develop the record and 8 interpret the medical evidence. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (the ALJ 9 has a special duty to fully and fairly develop the record and to assure that the plaintiff s interests 10 are considered even when the plaintiff is represented by counsel); see also Lewin v. Schweiker, 11 654 F.2d 631, 634 (9th Cir. 1981) (recognizing the need for full and detailed findings of facts 12 essential to the ALJ s conclusion). If evidence from the medical source is inadequate to determine 13 if the claimant is disabled, an ALJ is required to recontact the medical source to determine if 14 additional needed information is readily available. See 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) 15 ( We will seek additional evidence or clarification from your medical source when the report from 16 your medical source contains a conflict or ambiguity that must be resolved, the report does not 17 contain all the necessary information, or does not appear to be based on medically acceptable 18 clinical and laboratory diagnostic techniques. ). As a general rule, the record will be considered 19 inadequate or ambiguous when a medical source has provided a medical opinion that is not 20 supported by the evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ( An ALJ 21 is required to recontact a doctor if the doctor s report is ambiguous or insufficient for the ALJ to 22 make a disability determination. ) (citation omitted); see also Thomas v. Barnhart, 278 F.3d 947, 23 958 (9th Cir. 2002). The responsibility to see that this duty is fulfilled belongs entirely to the ALJ; 24 it is not part of the claimant s burden. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001). 25 The ALJ may discharge this duty in several ways, including: subpoenaing the claimant s 26 physicians, submitting questions to the claimant s physicians, continuing the hearing, or keeping 27 the record open after the hearing to allow supplementation of the record. Tonapetyan, 242 F.3d 28 at 1150. Here, the ALJ did not consider the Medical Opinion form or offer any explanation for 10 1 disregarding the opinion form. Because the form provided an opinion regarding plaintiff s physical 2 limitations, the ALJ should have made a reasonable effort to ascertain the identity of the author, 3 and whether the author was a treating physician, a consultative physician, or a physician who 4 merely reviewed the medical record but never examined plaintiff. The ALJ could have inquired 5 of agency officials or plaintiff s counsel as to the source of the Medical Opinion form.8 Absent this 6 information, it was impossible for the ALJ to determine the relative weight to accord to the findings 7 in the Medical Opinion form. Thus, the ALJ erred by failing to fully develop the record. 8 For the foregoing reasons, remand is warranted.9 On remand, the ALJ should make a 9 reasonable effort to ascertain the identity of the author of the Medical Opinion form, should 10 consider the Medical Opinion form, and specifically explain the weight he gives that opinion. 11 / 12 / 13 / 14 / 15 / 16 / 17 / 18 / 19 20 21 22 23 24 25 26 27 28 8 At the end of the hearing on April 23, 2007, plaintiff informed the ALJ that she was currently being treated by Dr. Susan Biegel and Dr. Christine MacLarkley, and that she had been previously treated by Dr. William Paley. [AR at 215-17.] Although the ALJ said that he would subpoena plaintiff s records from Dr. Biegel and Dr. MacLarkley, it does not appear that he contacted those medical sources to determine whether one of them prepared the Medical Opinion form. Moreover, the ALJ did not inquire as to the signature on the Medical Opinion form during the hearing, or keep the record open after the hearing to allow for supplementation regarding the author of the opinion form, even though it appears that the ALJ received a copy of the Medical Opinion form prior to the date of the hearing. [AR at 205, 210.] 9 As the ALJ s consideration on remand of the Medical Opinion form may impact the other issues raised by plaintiff in the Joint Stipulation, the Court will exercise its discretion not to address those issues in this Order. Rather, upon remand, the ALJ should re-examine the lay witness statements, and determine whether vocational expert testimony regarding the effect of plaintiff s nonexertional limitations is necessary. 11 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 4 As a general rule, remand is warranted where additional administrative proceedings 5 could remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 6 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th 7 Cir. 1984). In this case, remand is appropriate to properly consider the findings in the Medical 8 Opinion form. The ALJ is instructed to take whatever further action is deemed appropriate and 9 consistent with this decision. 10 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is 11 granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to 12 defendant for further proceedings consistent with this Memorandum Opinion. 13 14 15 16 DATED: September 12, 2008 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
