Marvin D Pernell v. Michael J Astrue, No. 5:2007cv01604 - Document 22 (C.D. Cal. 2009)

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

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARVIN D. PERNELL o/b/o V.I.P., ) ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 07-1604-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on December 17, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 January 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). On September 18, 2008, the parties filed a Joint Stipulation in 24 which: 25 and awarding benefits or, in the alternative, remanding the matter for 26 a 27 Commissioner s decision be affirmed. 28 Joint Stipulation under submission without oral argument. new 11, 2008, the parties consented to proceed before On the plaintiff seeks an order reversing the Commissioner s decision administrative hearing; and defendant requests that the The Court has taken the parties SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On September 28, 2004, plaintiff Vincent Imanuel Pernell s father, 4 Marvin D. Pernell, on behalf of his minor son, protectively filed an 5 application for SSI, alleging disability since May 1, 2004,1 due to 6 seizure disorder and asthma. 7 109.) 8 (A.R. 62-63, 66-75.) 9 was represented by counsel and accompanied by his father, appeared at (Administrative Record ( A.R. ) 19, 98, The application was denied initially and upon reconsideration. On March 7, 2007, and June 8, 2007, plaintiff, who 10 hearings before Administrative Law Judge Lowell Fortune ( ALJ ). (A.R. 11 369-96, 397-424.) 12 (A.R. 16-27), and the Appeals Council subsequently denied plaintiff s 13 request for review of the ALJ s decision (A.R. 6-9). On June 19, 2007, the ALJ denied plaintiff s claim 14 15 SUMMARY OF ADMINISTRATIVE DECISION 16 17 In his written decision, the ALJ found that, as of September 28, 18 2004, the date the application was filed, plaintiff was an older infant 19 and, as of June 19, 2007, the date of the ALJ s decision, plaintiff was 20 a pre-schooler. (A.R. 19.) 21 22 The ALJ determined that plaintiff has the following severe 23 impairments: 24 specified; and attention deficit hyperactivity disorder ( ADHD ). (A.R. 25 19.) The ALJ a seizure disorder; a disruptive disorder, not otherwise further determined that plaintiff does not have an 26 27 28 1 At the supplemental administrative hearing, plaintiff s counsel amended plaintiff s alleged disability onset date to September 28, 2004, the protective filing date of plaintiff s SSI application. (A.R. 400.) 2 1 impairment or combination of impairments that meets, medically equals, 2 or functionally equals one of the listed impairments in 20 C.F.R. Part 3 404, Subpart P, Appendix 1. (Id.) 4 5 The ALJ found, in reliance on the opinion of the medical expert 6 psychologist, Michael E. Kania, Ph.D., that the opinion of plaintiff s 7 treating psychologist, Wolfgang Klebel, Ph.D., was based solely upon 8 what [plaintiff s] father told the doctor and not on any independent 9 objective findings or psychological testing. (A.R. 22.) The ALJ 10 further found that the statements of plaintiff s father concerning the 11 intensity, persistence and limiting effects of [plaintiff s] symptoms 12 are not entirely credible. (A.R. 20.) 13 14 Based on the ALJ s assessment of the evidence and in reliance on 15 the opinions of the two medical experts, Dr. Kania and Colin P. Hubbard, 16 M.D., F.A.A.P., the ALJ concluded that plaintiff has not been disabled, 17 as defined in the Social Security Act, since September 28, 2004, the 18 date the application was filed. (A.R. 27.) 19 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 23 decision to determine whether it is free from legal error and supported 24 by substantial evidence in the record as a whole. 25 F.3d 625, 630 (9th Cir. 2007). 26 evidence as a reasonable mind might accept as adequate to support a 27 conclusion. 28 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 3 The evidence must be more than Connett v. 1 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 2 record can constitute substantial evidence, only those reasonably 3 drawn from the record will suffice. 4 1063, 1066 (9th Cir. 2006)(citation omitted). While inferences from the Widmark v. Barnhart, 454 F.3d 5 6 Although this Court cannot substitute its discretion for that of 7 the Commissioner, the Court nonetheless must review the record as a 8 whole, weighing both the evidence that supports and the evidence that 9 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of 10 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 12 responsible for determining credibility, resolving conflicts in medical 13 testimony, and for resolving ambiguities. 14 1035, 1039-40 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 15 16 The Court will uphold the Commissioner s decision when the evidence 17 is susceptible to more than one rational interpretation. 18 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 19 review only the reasons stated by the ALJ in his decision and may not 20 affirm the ALJ on a ground upon which he did not rely. 21 at 630; see also Connett, 340 F.3d at 874. 22 the Commissioner s decision if it is based on harmless error, which 23 exists only when it is clear from the record that an ALJ's error was 24 inconsequential to the ultimate nondisability determination. Robbins 25 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 26 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 27 F.3d at 679. 28 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse DISCUSSION 1 2 Plaintiff alleges the following three issues: 3 (1) whether the ALJ 4 properly considered the treating psychologist s opinion; (2) whether the 5 ALJ properly considered the lay witness statements of plaintiff s 6 father; and (3) whether the ALJ properly considered the type, dosage, 7 effectiveness, and side effects of plaintiff s medication. 8 Stipulation ( Joint Stip. ) at 2-3.) (Joint 9 10 I. The Reason Articulated By The ALJ For Disregarding The Opinion Of 11 Plaintiff s Treating Psychologist Is Not Legitimate, And The Record 12 Must Be Developed Further Regarding Plaintiff s Psychological 13 Limitations And Seizure Disorder. 14 15 A treating physician s conclusions must be given substantial Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even if 16 weight. 17 the treating doctor s opinion is contradicted by another doctor, the ALJ 18 may not reject this opinion without providing specific and legitimate 19 reasons supported by substantial evidence in the record. Orn, 495 F.3d 20 at 633 (internal punctuation and citation omitted); see also McAllister 21 v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ( broad and vague 22 reasons for rejecting the treating physician s opinion do not suffice). 23 A licensed psychologist is an acceptable source of medical evidence and 24 a treating psychologist s opinion is given the same weight as that of a 25 treating 26 certified psychologists are acceptable medical sources, like licenced 27 physicians (20 C.F.R. § 416.913(a)(1)), upon whose opinion a disability 28 finding may be based). physician. See 20 C.F.R. 5 § 416.913(a)(2) (licensed or 1 In Social Security cases, the law is well-settled that the ALJ has 2 an affirmative duty to fully and fairly develop the record and to 3 assure that the claimant s interests are considered . . . even when the 4 claimant is represented by counsel. 5 1183 (9th Cir. 2003)(ellipsis in original; quoting Brown v. Heckler, 713 6 F.2d 441, 443 (9th Cir. 1983)); Smolen, 80 F.3d at 1273. 7 duty to supplement a claimant s record is triggered by ambiguous 8 evidence, the ALJ s own finding that the record is inadequate or the 9 ALJ s reliance on an expert s Celaya v. Halter, 332 F.3d 1177, conclusion that the The ALJ s evidence 10 ambiguous. 11 is Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)(citing Tonapetyan v. Halter, 242 F.3d at 1144, 1150 (9th Cir. 2001)). 12 13 The ALJ has a duty to scrupulously and conscientiously probe 14 into, inquire of, and explore for all the relevant facts by procuring 15 the necessary, relevant treatment records. Higbee v. Sullivan, 975 F.2d 16 558, 561 (9th Cir. 1992)(citation omitted). 17 416.912(e)(1) provides that the Administration will seek additional 18 evidence or clarification from your medical source when the report from 19 your medical source contains a conflict or ambiguity that must be 20 resolved, the report does not contain all of the necessary information, 21 or does not appear to be based on medically acceptable clinical and 22 laboratory diagnostic techniques. 23 a claimant s medical sources provide insufficient evidence to determine 24 whether the claimant is disabled, a consultative examination may be 25 ordered); 20 C.F.R. § 416.919k (Commissioner may order the purchase of 26 psychiatric and psychological examinations, X-rays and laboratory tests 27 (including 28 electrocardiograms, and stress tests) from a medical source ). specialized tests, Further, 20 C.F.R. § See also 20 C.F.R. § 416.917 (when such 6 as pulmonary function studies, 1 In the present case, the ALJ rejected the opinion of plaintiff s 2 treating psychologist, Dr. Klebel, in reliance on the opinion of the 3 medical expert psychologist, Dr. Kania. (A.R. 21-22.) Dr. Kania opined 4 that Dr. Klebel s opinion was based solely upon what [plaintiff s] 5 father told the doctor and not on any independent objective findings or 6 psychological testing. (A.R. 22.) 7 8 9 The record contains two relatively short assessments completed by Dr. Klebel: (1) a Riverside County Mental Health Plan Assessment/Care 10 Plan: 11 Assessment ); and (2) a Riverside Mental Health Plan Provider Referral 12 Request Form, dated April 6, 2007, on the first page, but dated January 13 23, 2007, on the third, signature page (the April 2007 Assessment ).2 14 (A.R. 235-37, 240-42, 243.) Initial, signed on January 23, 2007 (the January 2007 15 16 In the January 2007 Assessment, Dr. Klebel diagnosed plaintiff with 17 disruptive disorder, not otherwise specified, ADHD combined, grand mal 18 seizures, asthma, and spiking fever difficult to contain. 19 Dr. Klebel reported that plaintiff presented with the following problems 20 and clinical symtpomatology: 21 toys and other things, sleepwalker and hitting brother in sleep, (A.R. 235.) aggressive, destructive, breaking all 22 23 24 25 26 27 28 2 The second and third pages of both the January 2007 Assessment and the April 2007 Assessment are identical, except for a handwritten change made to plaintiff s dysfunction rating on page two of the April 2007 Assessment, from Moderate to Severe. (A.R. 236-37, 241-42.) Next to the dysfunction rating box previously marked Moderate with a computergenerated X, Dr. Klebel handwrote and signed Rating corrected to Severe, 4-6-2007, in which Dr. Klebel hand-marked an X in the Severe box. (A.R. 241.) The third page of each assessments is identical. Given its signature date of January 23, 2007, it is likely that this third page should have been attached only to the January 2007 Assessment. (A.R. 237, 242.) 7 1 [n]ightmares and violent dreams, mother was on speed during pregnancy, 2 presently father has custody, child is excited after unsupervised visit 3 with mothe[r], [h]ad a head injury in forster [sic] care from a fall. 4 (Id.) 5 appearance and normal affect and with speech and thought within normal 6 limits, plaintiff was limited, short, agitated, and angry. 7 (Id.) 8 supervision, because he picks up things everywhere and might be 9 endangering his safety and because of his [a]ggressiveness with Dr. Klebel opined that, while plaintiff presented with a clean Dr. Klebel further opined that plaintiff requires constant 10 siblings. 11 treatment with neurologist in Loma Linda hospital, and at that time, 12 plaintiff s dysfunction rating was Moderate. (A.R. 237.) Dr. Klebel reported that plaintiff was in (A.R. 235-37.) 13 14 With respect to treatment recommendations, Dr. Klebel opined that 15 plaintiff s destructiveness might be partially caused by his epilepsy, 16 but needs to be controlled and he needs to learn how to deal with his 17 aggrisive [sic] emotion, will take probably more than one year of 18 treatment. 19 at that time, Dr. Klebel stated that plaintiff was taking phenobarbital 20 for epilepsy and abuteral for asthma. 21 illness, Dr. Klebel noted that plaintiff s mother is bipolar, and she 22 is, and was during her pregnancy with plaintiff, on methamphetamine, for 23 which she has not received treatment. (A.R. 236.) Regarding the medication plaintiff was taking (Id.) As for familial mental (Id.) 24 25 With respect to anticipated behavioral outcome/goals, Dr. Klebel 26 listed the following goals to be completed by April 23, 2007: 27 management and control of agressiveness [sic], (hyperactivity possible 28 in need of control by medication), has non-stop problems of aggressive 8 [a]nger 1 and destructive behavior every day - to reduce to 1-2 times per day and 2 [w]ill try to attempt some behavioral approach and desensitation to 3 control his aggressive and angry nightmares through talking about them 4 and playing games, reduce them from nightly and when napping, to reduce 5 1-2 times a week. 6 achieving 7 developing stories with him dealing with his problems, some cognitive 8 approach to desensitize bad memories, maybe some bad memories are 9 preverbal. these (A.R. 237.) goals Dr. Klebel s anticipated methods for included: [p]lay therapy with puppets and (Id.) 10 11 In the April 2007 Assessment, Dr. Klebel again diagnosed plaintiff 12 with disruptive disorder, not otherwise specified, ADHD combined, grand 13 mal seizures, asthma, and spiking fever difficult to contain. 14 240.) 15 Moderate 16 evaluation. 17 psychiatric evaluation referral: (A.R. Dr. Klebel modified his dysfunction rating of plaintiff from to Severe (Id.) and Dr. referred Klebel plaintiff stated the for a following psychiatric reasons 18 19 [Plaintiff] cannot keep attention to anything, always into 20 something, endangering himself by jumping from h[e]ights, 21 unprovoked aggressive behavior towards brothers and friends, 22 rejected from daycare for same reasons. 23 garbage, from other in restaurants etc., Father tries to 24 control him with time out, take away toys etc. with no effect. 25 Sleepwalking, when he wakes up he is shaking for 5 minutes, 26 fidgeting all the time. 27 Severe behavioral problems, needs constant direct supervision. 28 This will create future problems in school and is disabling Takes food from Was exposed prenatally to drugs. 9 for his capacity to learn and mature. 1 2 3 (Id.) 4 5 After reviewing Dr. Klebel s assessments and the record as a whole, 6 it is not clear that Dr. Klebel relied entirely on plaintiff s father s 7 statements in rendering his opinion regarding plaintiff s psychological 8 and behavioral issues. 9 must be premised upon plaintiff s father s observations (which is 10 entirely reasonable, given plaintiff s young age), it is not clear that 11 Dr. Klebel s conclusions were based solely upon what the father told 12 the 13 psychological testing, as Dr. Kania opined and the ALJ concluded. 14 (A.R. 22.) 15 Klebel based his opinion, at least in part, on what he observed during 16 his sessions with plaintiff. 17 Klebel s 18 father s observations, lacks the support of substantial evidence and 19 falls short of the specific, legitimate standard dictated by Ninth 20 Circuit precedent. doctor and not While some of Dr. Klebel s statements plainly on any independent objective findings or A reasonable interpretation of the evidence is that Dr. opinion, because it Accordingly, the ALJ s rejection of Dr. was based solely upon plaintiff s 21 22 Notwithstanding the above, plaintiff s treatment with Dr. Klebel 23 and psychological care in general appear to be limited, incomplete, and 24 inadequate to allow for proper evaluation of plaintiff s psychological 25 condition(s) and any attendant limitations.3 Specifically, plaintiff s 26 27 28 3 For the minor plaintiff in this case to receive proper evaluation and treatment, it is imperative that plaintiff s parents schedule and attend appointments and follow-up appointments. This has not occurred 10 1 father testified at the hearing that plaintiff treated with Dr. Klebel 2 on six separate occasions, twice a month as permitted by Medicare, yet 3 the record contains only two mental health assessments by Dr. Klebel and 4 no treatment notes. 5 handwritten letter to the ALJ, dated March 24, 2007, plaintiff s father 6 stated that, according to Dr. Klebel, the January 2007 Assessment should 7 have been dated February 7, 2007, and it was supposed to be a detailed 8 report 9 [plaintiff] was diagnosed with. on (A.R. 235-37, 240-43, 410.) [plaintiff s] status instead of (A.R. 46.) an Further, in a assessment of what However, the record does 10 not contain any assessment that bears a February 7, 2007 date, nor does 11 the record contain any detailed report by Dr. Klebel. 12 2007 13 evaluation, yet there are no psychiatric evaluation results or treatment 14 notes in the file, and there is no evidence that plaintiff has undergone 15 a consultative psychiatric evaluation or other appropriate psychological 16 testing. Assessment, Dr. Klebel referred plaintiff for In the April a psychiatric 17 18 on a regular basis thus far. 19 20 21 22 23 24 25 26 27 28 The record reflects several failures to follow-up with recommended treatment and no-shows by plaintiff s mother. (A.R. 20 -- ALJ states that plaintiff s doctors suggested increasing the Phenobarbital level with close follow up. [Plaintiff s] mother failed to show for any follow-up visits ; 194 -- Letter dated November 14, 2004, by plaintiff s treating pediatrician, Annalisa Abjelina, M.D., which states plaintiff s neurologist, Debra Demos, M.D., suggested increasing [plaintiff s] dose [of phenobarbital] and close follow-up . . . but [plaintiff s mother] has failed to show up to our office since August for a follow-up examination. . . . I reported this to Child Protective Services. ) Further, despite some effort by plaintiff s father to pursue medical and psychological care for plaintiff, the record is replete with notations of cancelled appointments and no-shows by plaintiff s father as well. (A.R. 21 -- ALJ states that, [plaintiff s] father cancelled two appointments and failed to show on two other occasions ; 239 -- Letter dated February 27, 2007, by plaintiff s treating child and family therapist, Ann Hull, M.A., which states, Father called and cancelled two appointments and failed to show on two other occasions ). 11 1 Earlier treatment with child and family therapist, Ann Hull, M.A., 2 with whom plaintiff treated on September 27 and 28, 2006, also was not 3 pursued properly. 4 despite Ms. Hull s statement that more time would . . . be needed to 5 determine if the symptoms [plaintiff s] father reported are observable. 6 (A.R. 239.) 7 father cancelled two appointments and failed to show on two other 8 occasions, Ms. Hull closed her file and discharged plaintiff on October 9 25, 2006. Follow-up care with Ms. Hull was not undertaken, The record reflects that, due to the fact that plaintiff s (Id.) 10 The record regarding the nature and extent of plaintiff s seizure 11 12 disorder also is sketchy. 13 undergone any recent formal neurological testing to assess the nature, 14 extent, and cause(s) of his seizure disorder and the extent, if any, to 15 which he experiences side effects as a result of taking phenobarbital. 16 While 17 Hospital have opined that there may be a connection between plaintiff s 18 seizure 19 seizures reflects,4 there is no evidence of formal testing to confirm 20 or rule out this theory. 21 brain wave test of plaintiff was performed in 2004, despite plaintiff s 22 significant seizure activity since then. 23 15, 2004, one of plaintiff s treating physicians, Debra Demos, M.D., 24 recommended 25 follow-up, but the record is devoid of any follow-up visits. (A.R. 194, 26 227.) medical There is no evidence that plaintiff has professionals activity and increasing a high from Loma fever, as Linda the University diagnosis (A.R. 288, 298, 323, 384.) plaintiff s of febrile The most recent (A.R. 384-86.) phenobarbital Children s level On November with close 27 4 28 According to http://en.wikipedia.org, a febrile seizure is a convulsion triggered by a sudden rise in body temperature. 12 1 It is also unclear whether plaintiff s severe disruptive disorder 2 and ADHD are independent impairments, or whether they exist secondary to 3 plaintiff s seizure disorder and/or phenobarbital side effects. Indeed, 4 Dr. Klebel opined that plaintiff s destructiveness might be partially 5 caused by his epilepsy, and for proper assessment, plaintiff would 6 require probably more than one year of treatment. (A.R. 236; emphasis 7 added.) 8 9 Even the medical expert, Dr. Hubbard, testified at the hearing that 10 plaintiff s acting out behavior may be just bad behavior, or it may 11 be pathological . . . we ll see . . . investigate it. 12 Hubbard further testified that, we seem reasonably certain [plaintiff] 13 doesn t have a brain tumor . . . he s not doing -- a temporal lobe 14 seizure, or maybe he is. 15 added.) (A.R. 393.) At this point, we don t know. Dr. (Id.; emphasis 16 17 On remand for further development of the record, all treatment 18 records and reports prepared by Dr. Klebel and plaintiff s other 19 treating physicians should be obtained. Further, it appears that it may 20 be necessary to have plaintiff undergo a consultative examination by a 21 psychologist or psychiatrist and be given and appropriate work-up with 22 necessary 23 examination to assess the nature, extent, and etiology of plaintiff s 24 seizure disorder and attendant limitations. 25 /// 26 /// 27 /// 28 /// testing and/or an appropriate 13 neurological consultative 1 II. Until The Record Has Been Developed Further, The Court Cannot 2 Assess Whether The ALJ Properly Considered The Statements Of 3 Plaintiff s 4 Psychological Limitations, Seizures, And Purported Medication Side 5 Effects. Father Regarding His Observations Of Plaintiff s 6 7 In evaluating the credibility of a claimant s assertions of 8 functional limitations, the ALJ must consider lay witnesses reported 9 observations of the claimant. Stout, 454 F.3d at 1053. [F]riends and 10 family members in a position to observe a claimant s symptoms and daily 11 activities are competent to testify as to [the claimant s] condition. 12 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. § 13 416.913(d)(4) ( we may also use evidence from other sources to show the 14 severity of your impairment(s) . . . . 15 not limited to . . . spouses, parents and other care-givers, siblings, 16 other 17 disregards the testimony of a lay witness, the ALJ must provide reasons 18 that are germane to each witness. 19 1114 (9th Cir. 2009) (citation omitted). 20 to each witness must be specific. 21 that the ALJ, not the district court, is required to provide specific 22 reasons for rejecting lay testimony ). relatives, friends, Other sources include, but are neighbors, and clergy ). If an ALJ Bruce v. Astrue, 557 F.3d 1113, Further, the reasons germane Stout, 454 F.3d at 1054 (explaining 23 24 An ALJ may properly discount lay testimony that conflict[s] with 25 the available medical evidence (Vincent v. Heckler, 739 F.2d 1393, 1395 26 (9th Cir. 1984)), particularly, when, as in Vincent, lay witnesses 27 [are] making medical diagnoses, because [s]uch medical diagnoses are 28 beyond the competence of lay witnesses and therefore do not constitute 14 1 competent evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 2 1996) (original emphasis). 3 testifies about a claimant s symptoms, such testimony is competent 4 evidence and cannot be disregarded without comment. 5 454 F.3d at 1055, where the ALJ s error lies in a failure to properly 6 discuss competent lay testimony favorable to the claimant, a reviewing 7 court cannot consider the error harmless unless it can confidently 8 conclude that no reasonable ALJ, when fully crediting the testimony, 9 could have reached a different disability determination. When, as here, however, a lay witness Id. Under Stout, 10 11 Further, when an ALJ evaluates a claimant s limitations, he must 12 consider evidence regarding the side effects of medications. 13 Security Ruling 96-7p requires consideration of the type, dosage, 14 effectiveness, and side effects of any medication the individual takes 15 or has taken to alleviate pain or other symptoms. 16 § 416.929(c)(3)(iv). 17 consider all factors that might have a significant impact on an 18 individual s ability to [function]. 19 817 (9th Cir. 1993)(citation omitted). 20 effects of medications. Social See also 20 C.F.R. The Ninth Circuit has observed that an ALJ must Erickson v. Shalala, 9 F.3d 813, Such factors may include side Id. at 818. 21 22 The ALJ found that plaintiff s father s statements regarding his 23 observations of plaintiff s behavioral problems and medication side 24 effects were not entirely credible, primarily because the treatment 25 reports did not corroborate what plaintiff s father described. 26 20-21.) 27 toward his brothers; destructive with toys; has nightmares; sleepwalks; 28 usually seizes in the middle of the night; has difficulty understanding Plaintiff s father testified that plaintiff is: 15 (A.R. aggressive 1 and learning, because he cannot listen at least five minutes to stories 2 being read; and hyper, aggress[ive], ang[ry], and [experiences] slurred 3 speech as a result of taking phenobarbital to control his seizures. 4 (A.R. 78, 102, 376, 393.) 5 6 Until the record condition is developed 8 limitations, 9 rejection of plaintiff s father s statements regarding his observations 10 of plaintiff. After the record has been developed further, the ALJ must 11 provide germane reasons, to the extent they exist, for rejecting the 12 statements 13 plaintiff s behavioral issues, seizure activity, and medication side 14 effects. of cannot plaintiff s assess father disorder the and plaintiff s psychological Court seizure regarding 7 the and further his propriety regarding his of attendant the ALJ s observations of 15 16 III. Remand Is Required. 17 18 The decision whether to remand for further proceedings or order an 19 immediate award of benefits is within the district court s discretion. 20 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 21 useful purpose would be served by further administrative proceedings, or 22 where the record has been fully developed, it is appropriate to exercise 23 this discretion to direct an immediate award of benefits. 24 ( the decision of whether to remand for further proceedings turns upon 25 the likely utility of such proceedings ). 26 outstanding issues that must be resolved before a determination of 27 disability can be made, and it is not clear from the record that the ALJ 28 would be required to find the claimant disabled if all the evidence were 16 Where no Id. at 1179 However, where there are 1 properly evaluated, remand is appropriate. Id. 2 3 Here, remand is the appropriate remedy to allow the ALJ the 4 opportunity to remedy the above-mentioned deficiencies and errors. See, 5 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 6 further proceedings is appropriate if enhancement of the record would be 7 useful); McAllister, 888 F.2d at 603 (remand appropriate to remedy 8 defects in the record). 9 CONCLUSION 10 11 12 Accordingly, for the reasons stated above, IT IS ORDERED that the 13 decision of the Commissioner is REVERSED, and this case is REMANDED for 14 further proceedings consistent with this Memorandum Opinion and Order. 15 16 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 17 copies of this Memorandum Opinion and Order and the Judgment on counsel 18 for plaintiff and for defendant. 19 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 22 DATED: August 21, 2009 23 24 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 25 26 27 28 17

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