Manuel Morales v. Michael J Astrue, No. 5:2007cv01549 - Document 15 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. After reviewing the matter, the Court concludes that the decision of the Commissioner must be reversed, and the matter remanded for a new hearing. (READ ATTACHED ORDER FOR DETAILS) (esa)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MANUEL MORALES, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 07-01549-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). 27 28 Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. 1 Plaintiff raises the following issues: 2 1. Whether Plaintiff s non-exertional impairments rendered use 3 of the Grids inappropriate and instead required testimony 4 from a vocational expert ( VE ); 5 2. Whether the Administrative Law Judge ( ALJ ) failed to 6 properly analyze Plaintiff s diabetes as a non-Listing level 7 impairment; 8 3. Whether the ALJ failed to develop the record; 9 4. Whether 10 11 the ALJ improperly rejected the opinion of Plaintiff s treating physician; and 5. 12 Whether the ALJ properly discredited Plaintiff s credibility. 13 After reviewing the matter, the Court concludes that the decision 14 of the Commissioner must be reversed, and the matter remanded for a 15 new hearing. 16 17 I 18 THE ALJ DID NOT ERR IN UTILIZING THE GRIDS 19 AS A FRAMEWORK FOR DECISION-MAKING 20 After finding that Plaintiff could not return to his past 21 relevant work as a machine shop laborer, at Step Four of the 22 sequential evaluation analysis (see AR at 24), the ALJ proceeded to 23 the Step Five analysis; that is, determining whether work existed in 24 the national economy that Plaintiff could perform. 25 determination, the ALJ referenced the Medical-Vocational Guidelines, 26 found at 20 C.F.R. part 404, subpart P, appendix 2 (the Grids ). (AR 27 at 25.) 28 Plaintiff contests in the first issue is contained in the following In making this The finding of the ALJ with regard to use of the Grids which 2 1 portion of the Decision: 2 If the claimant can perform all or substantially all 3 of the exertional demands at a given level of exertion, the 4 medical-vocational rules direct a conclusion of either 5 disabled or not disabled depending upon the claimant s 6 specific vocational profile (SSR 83-11). 7 cannot perform substantially all of the exertional demands 8 of 9 nonexertional limitations, the medical-vocational rules are 10 used as a framework for decision making unless there is a 11 rule 12 considering the additional exertional and/or nonexertional 13 limitations (SSRs 83-12 and 83-14). 14 solely nonexertional limitations, section 204.00 in the 15 Medical-Vocational 16 decision making (SSR 85-15). work that at a given directs a level of conclusion Guidelines When the claimant exertion of and/or disabled has without If the claimant has provides a framework for 17 If the claimant had the residual functional capacity to 18 perform the full range of medium work, considering the 19 claimant s age, education, and work experience, a finding of 20 not disabled would be directed by Medical-Vocational Rule 21 203.25 or 26. 22 little or no effect on the occupational base of unskilled 23 medium work. 24 appropriate under the framework of this rule. 25 reason why the claimant cannot perform a medium exertional 26 level of work including the job of machine shop assembler 27 cited by the State Agency vocational consultants at 2E-2. 28 The However, the additional limitations have A finding of not disabled is therefore non-exertional limitations 3 assessed I see no would not 1 2 significantly narrow the range of medium work available. (AR 25.) 3 4 Plaintiff s argument, in its essential form, is that he has 5 significant non-exertional limitations which require the use of a VE, 6 and thus rendered the ALJ s reliance on the Grids inappropriate. 7 8 A. Applicable Law. 9 Once Plaintiff has established that he is unable to return to his 10 past relevant work (or that he has no past relevant work), the burden 11 shifts to the Commissioner to establish the existence of other jobs 12 which 13 considering his age, education, residual functional capacity, and 14 vocational profile. 15 utilizing the Medical Vocational guidelines ( Grids ) in Appendix 2, 16 Subpart P, 20 C.F.R. Part 404 or by calling upon the services of a 17 vocational expert. 18 1999). exist in significant numbers which Plaintiff can perform The Commissioner can meet this burden either by Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 19 Identical principles regarding application of the Grids were 20 articulated by the Ninth Circuit in its decision in Polny v. Bowen, 21 where the following discussion ensued: 22 The major issue on appeal is whether the 23 administrative law judge erred in applying the grids in this 24 case where the applicant s impairment was not exertional. 25 The 26 nonexertional restriction and so the application of the 27 grids was appropriate. 28 (9th Cir.), modified 794 F.2d 1348 (1986), we held that where Secretary argues that Polny had no significant In Razey v. Heckler, 785 F.2d 1426 4 1 an 2 limitations the use of the grids was permissible. 3 decision, in accord with other authority - e.g., Lebron v. 4 Secretary of Health and Human Services, 747 F.2d 818 (1st 5 Cir. 1984) - recognizes the force of the Secretary s own 6 regulations which state that the grids apply where an 7 individual has a combination of impairments resulting in 8 both strength limitations and nonexertional limitations. 9 20 C.F.R. Pt. 404, Subpt. P, App. 2, §200.00(e)(2). 10 applicant had both exertional and nonexertional That (864 F.2d at 663.) 11 12 In Desrosiers v. Secretary of Health and Human Services, 846 F.2d 13 573, 576-577 (9th Cir. 1988), the Court also held that Social Security 14 law does not preclude application of the Grids in cases which present 15 non-exertional limitations: The ALJ should first determine if a 16 claimant s non-exertional limitations significantly limit the range of 17 work permitted by her exertional limitations. (Id. at 577.) 18 The Commissioner s own regulations and rulings are also 19 consistent in defining the scope and limits of the applicability of 20 the Grids. 21 following illustrative discussion is found: Thus, in Social Security Ruling ( SSR ) 83-14, the 22 Section 200.00(e)(2) of Appendix 2 provides that, 23 where an individual has an impairment or combination of 24 impairments resulting in both strength limitations and 25 nonexertional limitations, the rules in this subpart are 26 considered 27 disabled may be possible based on the strength limitations 28 alone and, if not, the rule(s) reflecting the individual s in determining first 5 whether a finding of 1 maximum residual strength capabilities, age, education, and 2 work experience provide a framework for consideration of how 3 much the individual s work capability is further diminished 4 in terms of any types of jobs that would be contraindicated 5 by 6 combinations of nonexertional and exertional limitations 7 which cannot be wholly determined under the rules in this 8 Appendix 2, full consideration must be given to all of the 9 relevant the nonexertional facts the case discussions in of Also, in accordance each factor these with the in the 10 definitions 11 appropriate sections of the regulations, which will provide 12 insight into the adjudicative weight to be accorded each 13 factor. 14 and in limitations. (SSR 83-14.) 15 16 SSR 83-14 also notes that: 17 A particular additional exertional or nonexertional 18 limitation may have very little effect on the range of work 19 remaining that an individual can perform. 20 therefore, comes very close to meeting a table rule which 21 directs a conclusion of Not disabled. 22 an additional exertional or nonexertional limitation may 23 substantially reduce a range of work to the extent that an 24 individual is very close to meeting a table rule which 25 directs a conclusion of Disabled. 26 The person, On the other hand, (SSR 83-14.) 27 28 Numerous examples are provided in the regulations. In SSR 83-14, 6 1 for example, it is noted that in jobs at the medium level of exertion, 2 there would be more of a likelihood of a requirement to ascend or 3 descend ladders and scaffolding, to kneel, and crawl, but limitations 4 of these activities would not significantly affect the occupational 5 base. 6 exertional limitations or restrictions have very little effect on the 7 exertional occupational base, the conclusions directed by the Grids 8 would 9 significantly eroded the exertional job base, it is directed that the SSR 83-14 notes that where it is clear that additional non- not be affected. In cases where such limitations have 10 remaining portion of the job base will guide the decision. It is only 11 where the adjudicator does not have a clear understanding of the 12 effects of additional limitations on the job base, [that] the services 13 of a VS [vocational expert] will be necessary. (SSR 83-14.) 14 15 B. Analysis. 16 In Plaintiff s case, the ALJ determined that the non-exertional 17 limitations which he assessed would not significantly narrow the range 18 of available medium work. 19 evidence supports that finding. 20 were determined by the ALJ as part of Plaintiff s residual functional 21 capacity ( RFC ) included an ability to frequently stoop, kneel, 22 crouch 23 concentrated exposure to extreme cold and heat; and to avoid working 24 at heights or around hazardous or unprotected machinery. (AR at 22.) 25 Plaintiff seemingly argues that the mere existence of these non- 26 exertional limitations renders application of the Grids improper. (See 27 JS at 11.) 28 the applicable cases or regulations. and crawl; to The question, then, is whether substantial The non-exertional limitations which occasionally climb and balance; to avoid But, this is not the conclusion which must be drawn from 7 The ALJ reviewed the medical 1 evidence in the file in determining Plaintiff s RFC. 2 depreciated the credibility of the findings of Dr. Grogan. 3 consultative examination ( CE ) performed by Dr. Rocely Ella-Tomayo at 4 the 5 concludes that Plaintiff has no postural restrictions whatsoever, 6 including kneeling and squatting. (See AR at 135.) 7 ALJ, also, Dr. Grogan himself performed a physical examination which 8 essentially found normal orthopedic results, such as range of motion 9 of the extremities, motor strength, sensation, reflexes, and grip 10 request of the Department of Social Services He severely (AR The 131-135) As noted by the strength. (See AR at 129.) 11 There is some evidence of bilateral peripheral neuropathy 12 resulting from Plaintiff s severe impairment of diabetes mellitus, 13 which was noted by Dr. Grogan (see AR at 129), and some symptoms of 14 which were testified to by Plaintiff during the hearing. (See AR at 15 226.) 16 of Plaintiff s testimony, could result in an assessment of the mild 17 non-exertional limitations found by the ALJ. 18 found decreased sensation to light touch below the level of the knees 19 bilaterally. (AR 129.) 20 to Dr. Grogan s findings would substantiate some of the non-exertional 21 limitations found by the ALJ. 22 It is fair to say that a liberal reading of these findings, and Plaintiff also For example, Dr. Grogan Allocating at least some level of credibility cites what he asserts are additional and 23 significant non-exertional impairments that were not included in the 24 ALJ s RFC finding... (JS at 12.) These include diabetic retinopathy; 25 continuing problems with diabetic ulcers on his lower extremities; 26 kidney issues in the form of priteinuria, and some dizziness and 27 drowsiness from side effects of medications. Further, Plaintiff cites 28 his lack of literacy in English. (JS at 12-13.) 8 1 With regard to Plaintiff s lack of literacy in English, in 2 Plaintiff s type of work, which is generally unskilled work, the Grids 3 provide that illiteracy or an inability to communicate in English do 4 not significantly erode the job base. (See 20 C.F.R. Part 404, Subpart 5 P, Appendix 2, §200.00(g)(2007).) 6 Concerning the other asserted non-exertional impairments, 7 Plaintiff has not cited any evidence to indicate that any such 8 impairments have a significant impact on the disability analysis, in 9 terms of his ability to work. 10 the 11 disability analysis; rather, it is a demonstration that a diagnosis of 12 a particular condition includes relevant functional limitations. 13 latter simply have not been demonstrated. 14 15 existence of a Simply put, as often stated, it is not diagnosis which has ultimate impact on the The For the foregoing reasons, the Court finds that Plaintiff s first issue has no merit.1 16 17 II 18 THE ALJ FAILED TO UNDERTAKE OR ARTICULATE 19 IN HIS DECISION THE APPROPRIATE ANALYSIS AT STEP THREE 20 OF THE SEQUENTIAL EVALUATION PROCESS 21 In a Pre-Hearing Memorandum filed by his representative (AR 95- 22 1 23 24 25 26 27 28 Plaintiff notes that his lack of English language skills would render him unqualified to perform the one occupation identified: machine shop assembler. As Plaintiff notes, the DOT requirements for this position require a Language Development level of 2, which would appear to be beyond Plaintiff s capacities. Assuming that Plaintiff s argument is correct with regard to this identified occupation, the Court deems any error to be harmless. Plaintiff was determined to be not disabled by utilization of the Grids as a framework. As such, it was not the obligation of the ALJ to identify any particular occupations at Step Five of the sequential evaluation. Doing so was superfluous. 9 1 105), it was asserted that Plaintiff is suffering from a combination 2 of medically severe impairments that [sic] equivalent to... [Listing] 3 9.08 diabetes mellitus. (AR 98; see also AR 208, Plaintiff s Appeal 4 to the Appeals Council: The ALJ committed reversible error in failing 5 to find or to clearify [sic] why is it that Mr. Morales diabetes 6 mellitus condition does not meet or equivalent [sic] 9.08 diabetes 7 mellitus... (AR 208).) 8 The ALJ s decision simply concludes that, 9 The claimant does not have an impairment or 10 combination of impairments that meets or medically equals 11 one of the listed impairments in 20 CFR Part 404, Subpart P, 12 Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 13 (AR 22.) 14 15 A. Applicable Law. 16 The Commissioner is required to consider Plaintiff s impairments 17 in light of the Listing of Impairments ( Listings ). 18 404, Subpart 404 P, Appendix 1. 19 impairments which are presumed to be of sufficient severity to prevent 20 the performance of work. 21 20 C.F.R. Part The Listings set forth certain 20 C.F.R. §416.925(a)(2000). Plaintiff s impairments need not precisely meet the criteria of 22 a Listing in order to obtain benefits. 23 combination of impairments is medically equivalent to one in the 24 Listings, disability is presumed and benefits are awarded. 25 §416.920(d)(2000); Barker v. Secretary of Health and Human Servs., 882 26 F.2d 1474, 1477 (9th Cir. 1989); Bowen v. Yuckert, 482 U.S. 137, 141- 27 42 28 compares the symptoms, signs, and laboratory findings concerning the (1987). To determine medical 10 If Plaintiff s impairment or equivalence, the 20 C.F.R. Commissioner 1 alleged impairment with the medical criteria of the listed impairment. 2 20 C.F.R. 3 medical evidence, which must be supported by medically acceptable 4 clinical and laboratory diagnostic techniques. 5 (2000). 6 §416.926(a)(2000). The decision is based solely on the 20 C.F.R. §416.926(b) The mere diagnosis of an impairment listed in Appendix 1 is not 7 sufficient to sustain a finding of disability. It must be shown that 8 the findings for that impairment are found in the record. 9 Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). Key v. Further, Plaintiff 10 must establish that he satisfies all of the criteria of the applicable 11 Listing. 12 (1990). 13 14 (See Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885 The Ninth Circuit has held in Lewis v. Apfel 236 F.3d 505 (9th Cir. 2001), that, 15 An ALJ must evaluate the relevant evidence before 16 concluding that a claimant s impairments do not meet or 17 equal 18 insufficient to support a conclusion that a claimant s 19 impairment does not do so. See Marcia v. Sullivan, 900 F.2d 20 172, 176 (9th Cir. 1990)(holding that ALJ erred by failing 21 to consider evidence of equivalence). 22 a listed impairment. A boilerplate finding is (236 F.3d at 512.) 23 24 In Lewis, the Circuit upheld the ALJ s conclusion that Plaintiff 25 did not meet a Listing because the ALJ s analysis and discussion of 26 the evidence in the body of his decision noted that the Plaintiff did 27 not comply with his prescribed treatment. 28 issue in that case required the presence of certain symptoms in spite 11 The particular Listing at 1 of at least 3 months of prescribed treatment. (See Id., at 513, fn 2 10.) 3 Plaintiff correctly notes that there is significant medical 4 evidence in the record which could demonstrate that he meets or equals 5 the Listing for diabetes mellitus (Listing 9.08). Certainly, there is 6 significant evidence of neuropathy, as documented by a number of 7 sources: Dr. Grogan; the CE report of Dr. Ella-Tomayo, and records of 8 Plaintiff s treating physicians, at the Molina Medical Center. 9 e.g., AR 158.) (See, Other than depreciating the findings of Dr. Grogan, 10 the ALJ completely failed to discuss the records of Plaintiff s 11 treating physician, or even the conclusions of the CE, in which it was 12 noted, under Diagnostic Impression, that Plaintiff suffered from 13 diabetes 14 extremities. (AR 135.) Moreover, there would appear to be laboratory 15 records in the file which require evaluation under subsection B of 16 Listing 9.08. mellitus with peripheral neuropathy of the lower 17 While the Commissioner correctly notes that it is Plaintiff s 18 burden to show that he meets or equals a Listing (see JS at 23-26), 19 citation 20 Plaintiff did present evidence relevant to the symptoms described 21 under the Listing. There was simply no discussion of this evidence in 22 the decision. 23 the decision being reviewed, from those cases, such as Lewis v. Apfel, 24 where the ALJ s discussion and evaluation of the medical evidence 25 provided a sufficient basis for review of the determination that the 26 claimant did not meet or equal a Listing. 27 discussion. 28 articulated his reliance on the conclusions of the State Agency to this principle does not save the ALJ s decision. That, in itself, distinguishes Plaintiff s case, and Moreover, in determining 12 Here, there is no such Plaintiff s RFC, the ALJ 1 Physicians (see AR at 139-148), who, of course, never examined 2 Plaintiff. 3 Agency 4 considered. (See AR at 139.) 5 way of substance which would permit adequate review. Moreover, there is nothing in the report of these State Physicians regarding Listing 9.08 other than it was Again, this provides nothing in the 6 The Court s determination to reverse and remand for further 7 hearing on this issue incorporates Plaintiff s argument in his third 8 issue, where he asserts that the ALJ failed to fully and properly 9 develop the record. Plaintiff asserts that the ALJ should have 10 ordered an orthopedic CE to determine if he suffered from degenerative 11 disc disease in his cervical and lumbar spine. 12 severely 13 grossly exaggerated and accommodative. (AR 24.) 14 Court is concerned that there should be adequate medical evidence in 15 the record from which to determine if Plaintiff meets or equals 16 Listing 9.08. 17 neuropathy, but it may be the case that a medical expert ( ME ) must 18 be utilized, or, that Plaintiff should receive additional and specific 19 examination with regard to the effects of his diabetes mellitus, with 20 particular regard to the Listing requirements. depreciated Dr. Grogan s findings, The ALJ, as noted, finding them to be Nevertheless, the Dr. Ella-Tomayo noted the presence of peripheral 21 22 III 23 THE ALJ DID NOT ERR IN HIS EVALUATION OF 24 DR. GROGAN AS A NON-TREATING PHYSICIAN 25 As noted, the ALJ depreciated the conclusions of Dr. Grogan 26 regarding Plaintiff s condition. (See AR at 24.) 27 asserts that Dr. Grogan was his treating physician. 28 Plaintiff first Dr. Grogan saw Plaintiff for the first time on September 30, 2004 13 1 (AR 119-130); then, over two years later on November 28, 2006 (AR 201- 2 205); and finally, on January 29, 2007 (AR 196-200, 219). 3 the space of over two years, Dr. Grogan saw Plaintiff three times. 4 Further, 5 administration of medication; no treatment regimen; or anything else 6 that 7 physician. 8 calculation of whether a doctor is a treating source is misplaced. 9 The definition of treating source is discussed, in part, in 20 C.F.R. 10 §404.1502 and, consistent with this Court s above discussion, consists 11 of a physician or other acceptable medical source who has provided 12 you... with medical treatment or evaluation and who has, or has had, 13 an ongoing treatment relationship with you. 14 visits is not determinative, it is relevant to the medical need for 15 treatment and evaluation, based on a person s specific condition. 16 Here, Plaintiff primarily suffers from diabetes mellitus, and sees his 17 actual treating source, Molina Medical Center, approximately every 18 three months. 19 source. (See AR at 228-229.) 20 not Plaintiff s treating source. (AR 203.) one On 21 the records normally of Dr. associates Grogan s with care examinations provided by Thus, in indicate a no treating Plaintiff s citation of case law regarding a numerical While the number of Plaintiff himself identified Molina as his treating remand, the medical Moreover, Dr. Grogan indicated he was evidence in the record will be 22 reconsidered, in addition to new evidence. For this reason, the Court 23 will not further address the ALJ s evaluation of Dr. Grogan s opinion 24 at this time. 25 // 26 // 27 // 28 IV 14 1 2 THE ALJ IMPROPERLY DISCREDITED PLAINTIFF S CREDIBILITY Plaintiff asserts that ALJ improperly discredited 3 credibility. 4 his credibility finding on the following factors, inter alia: 5 1. He is correct. the In the decision, the ALJ based his Plaintiff was fired from his last job and drew the full 6 round of unemployment insurance which required repeated 7 certification of being ready and willing to work. Plaintiff 8 has not looked for work after unemployment insurance ran 9 out; 10 2. The ALJ disbelieved that Plaintiff could not speak English, 11 despite being in the United States for at least 25 years 12 because I seriously doubt that after 25 years residence in 13 this country he is unable to express himself in English. 14 3. Plaintiff said his hands and feet are numb. He just started 15 taking insulin two weeks ago and takes medications for blood 16 pressure; 17 4. 18 19 Clinic at irregular intervals; 5. 20 21 Plaintiff said he has not driven in nine years, and lives in a house with his employed wife and children; 6. 22 23 Plaintiff sees his treating physician at Molina Medical Plaintiff would not detail his activities of daily living ( ADL ) despite repeated questions; 7. Plaintiff s self-assessment of his ability to stand, walk, 24 lift and sit is unsupported by any clinical or diagnostic 25 findings. 26 (AR 23-24.) 27 28 The law concerning the requirements for credibility assessment 15 1 are contained in the Commissioner s own regulations, at 20 C.F.R. 2 §404.1529(c), and have often been stated in Ninth Circuit Opinions. 3 (See Thomas v. Barnhart, 278 F.3d 947, 959-960 (9th Cir. 2002.) 4 Because this case will be remanded, it is necessary for the Court 5 to address the factors relied upon by the ALJ, so that the same 6 mistakes are not made again. 7 Discrediting Plaintiff because he does not speak English despite 8 having lived in the United States for 25 years, without any evidence 9 in the record indicating that he does speak more English than he 10 admits, is a speculative conclusion not worthy of a judicial opinion. 11 Plaintiff s statement that his hands and feet are numb is 12 certainly supported, as to his feet, by substantial medical evidence 13 that he has peripheral neuropathy. The ALJ s assertion that Plaintiff 14 just began taking insulin two weeks ago is a misstatement of the 15 record. The evidence indicates that Plaintiff had been taking insulin 16 by injection for two weeks, and had to change from taking his 17 medication in tablet form due to side effects the medication had on 18 his kidneys. (See AR at 230-231.) 19 his diabetes for many years. (AR 81, 86, 132, 160.) 20 Any failure to obtain Plaintiff has taken medication for information regarding the extent of 21 Plaintiff s ability to do ADLs lies with the ALJ, who asked only a few 22 questions during the hearing, all of which Plaintiff answered. (See AR 23 at 229-230.) 24 Plaintiff does not see his treating source at Molina Clinic at 25 irregular intervals. He goes approximately every three months. There 26 is nothing in the record to indicate that this is less frequent than 27 required by his medical condition. 28 The fact that Plaintiff has not driven a car in nine years, 16 1 combined with the fact that he lives in a house with his employed wife 2 and children, constitute a series of non sequiturs with regard to the 3 credibility analysis. 4 The ALJ s statement, as part of the credibility analysis, that, 5 I find no reason in this record why the diabetes mellitus could not 6 be controlled with an appropriate ADA diets and properly titrated 7 dosages on insulin (AR 24) constitutes an improper medical opinion by 8 the ALJ which is, moreover, unsupported by anything this Court has 9 found in the record. 10 Finally, reliance on Plaintiff s receipt of six months of 11 unemployment insurance which required repeated certification of being 12 ready and willing to work (see AR at 23-24) is unfounded. 13 contains 14 certified his ability to work full time while he received benefits, 15 nor did Plaintiff so testify at his hearing, at which he merely 16 acknowledged receipt of such benefits for approximately six months. 17 (See AR at 224.) 18 requirements of the forms are not supported by the record. 19 no forms or documents indicating that The record Plaintiff ever The ALJ s legal or factual conclusions as to the All in all, the credibility assessment in this case is completely 20 unsupported by any legitimate facts. 21 assessment will be undertaken. 22 23 24 On remand, a proper credibility For the foregoing reasons, this matter will be remanded for further hearing. IT IS SO ORDERED. 25 26 27 DATED: September 8, 2008 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 28 17
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