Michelle D. Hill v. Michael J. Astrue, No. 5:2009cv00769 - Document 12 (C.D. Cal. 2009)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is REVERSED. 2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above. (See document for further details.) (pcl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MICHELLE HILL, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 09-769 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that the Commissioner s decision 23 should be reversed and this matter remanded for further proceedings. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Michelle Hill was born on April 22, 1971, and was 26 thirty-seven years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 16, 19.] 28 (tenth grade) and past relevant work experience as a sales attendant 1 She has a limited education 1 and retail sales person. 2 disability on the basis of depression, bipolar disorder, anxiety 3 attacks, short-term memory problems, difficulty concentrating, 4 feelings of sadness, inability to drive due to phobias, lack of 5 motivation, and plantar fasciitis. [AR 13.] 6 II. 7 [AR 16, 47, 123.] Plaintiff alleges PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on April 17, 2009, and filed on 8 April 24, 2009. On September 29, 2009, Defendant filed an answer and 9 Plaintiff s Administrative Record ( AR ). On November 17, 2009, the 10 parties filed their Joint Stipulation ( JS ) identifying matters not 11 in dispute, issues in dispute, the positions of the parties, and the 12 relief sought by each party. 13 submission without oral argument. III. 14 This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS 15 Plaintiff applied for a period of disability and disability 16 insurance benefits ( DIB ) under Title II of the Social Security Act 17 and supplemental security income ( SSI ) under Title XVI on December 18 22, 2006, alleging disability since September 27, 2005. [AR 9.] 19 Plaintiff is insured for DIB purposes until September 30, 2010. [Id.] 20 After the applications were denied initially and on reconsideration, 21 Plaintiff requested an administrative hearing, which was held on 22 December 18, 2008, before Administrative Law Judge ( ALJ ) David M. 23 Ganly. [AR 19-51.] Plaintiff appeared without counsel1, and testimony 24 25 26 27 28 1 The ALJ informed Plaintiff that the record indicated that written notices had been sent to Plaintiff prior to the hearing advising her of the right to representation. [AR 21.] The ALJ asked Plaintiff whether it was correct to assume that Plaintiff was aware of her right to representation but chose not to retain an attorney, and Plaintiff responded yes. [AR 21-22.] The hearing proceeded. [AR 2251.] 2 1 was taken from Plaintiff, medical expert Joseph Malancharuvil and 2 vocational expert Stephen Berry. [AR 19.] 3 a decision issued on January 15, 2009. [AR 9-18.] 4 Council denied review on March 25, 2009, the ALJ s decision became the 5 Commissioner s final decision. [AR 1-3.] 6 7 IV. The ALJ denied benefits in When the Appeals STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner s decision to deny benefits. The Commissioner s (or 9 ALJ s) findings and decision should be upheld if they are free of 10 legal error and supported by substantial evidence. 11 court determines that a finding is based on legal error or is not 12 supported by substantial evidence in the record, the court may reject 13 the finding and set aside the decision to deny benefits. 14 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 15 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 16 F.3d 1157, 1162 (9th Cir. 17 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 18 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 19 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 20 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 21 preponderance. 22 which a reasonable person might accept as adequate to support a 23 conclusion. 24 a finding, a court must review the administrative record as a whole, 25 weighing both the evidence that supports and the evidence that 26 detracts from the Commissioner s conclusion. 27 can reasonably support either affirming or reversing, the reviewing 28 court may not substitute its judgment for that of the Commissioner. Id. To determine whether substantial evidence supports 3 Id. If the evidence 1 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. 2 V. DISCUSSION 3 A. THE FIVE-STEP EVALUATION 4 To be eligible for disability benefits a claimant must 5 demonstrate a medically determinable impairment which prevents the 6 claimant from engaging in substantial gainful activity and which is 7 expected to result in death or to last for a continuous period of at 8 least twelve months. 9 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 10 Disability claims are evaluated using a five-step test: 11 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 12 13 14 15 16 17 18 19 20 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 21 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 22 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 23 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 24 not disabled at any step, there is no need to complete further 25 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 26 Claimants have the burden of proof at steps one through four, 27 subject to the presumption that Social Security hearings are non28 4 1 adversarial, and to the Commissioner s affirmative duty to assist 2 claimants in fully developing the record even if they are represented 3 by counsel. 4 1288. 5 made, and the burden shifts to the Commissioner (at step five) to 6 prove that, considering residual functional capacity ( RFC )2, age, 7 education, and work experience, a claimant can perform other work 8 which is available in significant numbers. 9 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is Tackett, 180 F.3d at 1098, 10 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 11 Here, the ALJ found that Plaintiff had not engaged in substantial 12 gainful activity since her alleged disability onset date (step one); 13 that Plaintiff had severe impairments, namely a depressive disorder 14 not otherwise specified, mild, an anxiety disorder not otherwise 15 specified and probably situational, a personality disorder with 16 avoidant features, and plantar fasciitis (step two); and that 17 Plaintiff did not have an impairment or combination of impairments 18 that met or equaled a listing (step three). [AR 11-12.] 19 determined that Plaintiff had an RFC for light work with a restriction 20 to standing and/or walking for four hours in an eight-hour period and 21 to moderately complex tasks with four to five steps, with the 22 provision that Plaintiff cannot be in charge of the safety of others The ALJ 23 2 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 or work with dangerous, moving machinery. [AR 13.] Plaintiff was 2 unable to perform her past relevant work (step four). [AR 16.] 3 vocational expert testified that a person with Plaintiff s RFC could 4 perform work existing in significant numbers, such as information 5 clerk, final inspector and cashier II (step five). [AR 17.] 6 Accordingly, Plaintiff was found not disabled as defined by the 7 Social Security Act. [AR 17.] The 8 C. 9 The parties Joint Stipulation identifies the following three 10 11 ISSUES IN DISPUTE disputed issues: 1. Whether the ALJ properly considered the opinion of a 12 consultative examining physician regarding Plaintiff s 13 bipolar disorder and Global Assessment of Functioning 14 ( GAF ) score of 45; 15 2. 16 17 Whether the ALJ properly considered Plaintiff s medication side effects; and 3. 18 Whether the ALJ properly considered the lay witness statements. 19 [JS 2.] 20 As discussed below, Issue One mandates reversal of the 21 22 23 Commissioner s decision. D. Issues Two and Three are without merit. ISSUE ONE: DR. ZIMMERMAN Background 24 In the first claim, Plaintiff asserts that the ALJ did not 25 properly consider the medical evidence, particularly the opinion of 26 Dr. Emery Zimmerman, who examined Plaintiff on August 14, 2006, at the 27 CHARLEE Family Care clinic in Riverside County for an Assessment/Care 28 Plan: INITIAL. [JS 3-4; AR 181-82.] 6 During the assessment, Dr. 1 Zimmerman gave a diagnosis of Bipolar Disorder I, Depressed, Severe; 2 and Panic Disorder without Agoraphobia; and a GAF score of 45.3 [AR 3 181.] In the comments section, Dr. Zimmerman wrote: 4 Client suffering from severe depression and anxiety. 5 having panic attacks. 6 to symptoms. 7 She s also paranoid and fearful. 8 separate from her husband. 9 She is sexual abuse victim. She had to quit her job of 9 years [due] Client crying and sleepless, constantly worrying. She [has] 3 children, is She s a domestic violence and child 10 [Id.] 11 The next day, on August 15, 2006, a therapist at the CHARLEE 12 facility approved Plaintiff for monthly psychiatric evaluations with 13 medication monitoring and weekly therapy sessions for a six-month 14 period. [AR 183.] 15 Plaintiff s depressive moods and anxiety from a daily to weekly 16 occurrence within six months. [Id.] 17 The stated goal of the treatment was to decrease On September 25, 2006, Dr. Zimmerman completed a Psychiatric 18 Assessment/Evaluation stating a diagnosis of Bipolar Disorder I, 19 depressed; and panic disorder without agoraphobia (post-traumatic 20 stress disorder ( PTSD )). [AR 184.] 21 Zimmerman wrote, in part, that Plaintiff is probably encountering 22 PTSD [due to] early abuse . . . and needs therapy desperately. [Id.] In the comments section, Dr. 23 24 25 26 27 28 3 A GAF score reflects a clinician s subjective rating, on a scale of 0 to 100, of the more severe of two components: the severity of a patient s psychological symptoms, or the psychological, social, and occupational functioning of a patient. A GAF score of 41 through 50 signifies serious symptoms, such as suicidal ideation or severe obsessional rituals, or any serious impairment in social, occupational, or school functioning, such as the absence of friends or the inability to keep a job. See generally Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ( DSM-IV ). 7 1 At the administrative hearing of December 12, 2008, Plaintiff 2 testified that she received counseling with a therapist through county 3 services, that the sessions were scheduled for every two weeks, that 4 she had not seen the therapist for approximately one month, and that 5 she was waiting for a referral to resume the sessions. [AR 24, 26.] 6 The current record does not contain any notes of Plaintiff s ongoing 7 treatment or therapy after September 2006, as referenced by Dr. 8 Zimmerman, the initial CHARLEE notes, and Plaintiff s testimony. 9 On May 8, 2007, Plaintiff had a Complete Psychiatric Evaluation 10 performed by Dr. Romualdo R. Rodriguez. [AR 185-91.] 11 psychiatric records for Dr. Rodriguez to review, but after reviewing 12 Plaintiff s history and conducting a mental status exam, Dr. Rodriguez 13 gave a diagnosis of PTSD, a learning disorder not otherwise specified, 14 and a GAF score of 65.4 [AR 185-90.] 15 opinion, Dr. Rodriguez stated that, From a psychiatric standpoint, as 16 long as this claimant is properly treated for her PTSD she will be 17 able to recover within the next 12 months. [AR 190.] 18 functional assessment section, Dr. Rodriguez stated, among other 19 things, that Plaintiff was able to understand, remember and carry out 20 simple one or two-step job instructions, perform detailed and complex 21 instructions, and was slightly limited in all listed areas of mental 22 functioning, such as the ability to relate to supervisors, co-workers 23 and the public. [AR 191.] 24 There were no In the prognosis section of the In the At the administrative hearing of December 18, 2008, Dr. 25 4 26 27 28 A GAF score in the range of 61 through 70 denotes some mild symptoms, such as depressed mood or mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy or theft within the household, but indicates that the subject is generally functioning pretty well and has some meaningful interpersonal relationships. 8 1 Malancharuvil, the medical expert, testified that based on his review 2 of the available records, Plaintiff had an anxiety disorder not 3 otherwise specified, personality difficulties with avoidance features, 4 and mild depression. [AR 28.] 5 capable of performing moderately complex tasks up to four to five-step 6 instructions but should avoid safety operations or hazardous 7 machinery. [AR 28.] 8 Plaintiff was on a maintenance course of treatment, that she s 9 maintaining with the regimen, and that her anxiety appeared to be Based on the record, Plaintiff was Dr. Malancharuvil further testified that 10 situational. [AR 30.] 11 on the record, there is no suggestion that she has not improved, 12 that her activities were normal, and that there was no evidence of 13 hospitalization or an increase in treatment. [AR 34.] 14 Malancharuvil then discussed the opinion of Dr. Rodriguez, noting that 15 it demonstrated that Plaintiff did not meet the requirements of 16 establishing disability at the time of the examination, and testified 17 that the medical record did not support Dr. Zimmerman s diagnosis of 18 bipolar disorder. [AR 34-35.] 19 20 Dr. Malancharuvil also testified that based Dr. The Commissioner s Decision In the administrative decision, the ALJ noted Dr. Zimmerman s 21 initial opinion, the recommendation for individual therapy, and the 22 treatment note of September 25, 2006. [AR 14-15.] 23 based on the treating records, Plaintiff was noted to have no grave 24 disability and that she received only routine outpatient treatment, 25 and the records do not reflect any acute mental health crisis 26 requiring inpatient hospitalization or intensive treatment. [AR 15.] 27 The ALJ then discussed Dr. Rodriguez s opinion and conclusions in 28 detail, as well as the testimony of Dr. Malancharuvil. [Id.] 9 The ALJ stated that The ALJ 1 concluded that, I give more weight to the medical expert s testimony 2 and opinion, since the medical expert had an opportunity to review the 3 entire record as developed, and credited Dr. Malancharuvil s opinion 4 regarding Plaintiff s functional capacity. [AR 16.] 5 6 Discussion The ALJ has a special duty to fully and fairly develop the 7 record and to assure that the claimant s interests are considered 8 . . . even when the claimant is represented by counsel. Celaya v. 9 Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)(ellipsis in original) 10 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983); Smolen v. 11 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also Widmark v. 12 Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006)(ALJ has a duty to 13 develop the record where there is a gap in the medical evidence). 14 When a claimant is not represented by counsel, this responsibility is 15 heightened: 16 probe into, inquire of, and explore for all the relevant facts. 17 must be especially diligent in ensuring that favorable as well as 18 unfavorable facts and circumstances are elicited. Higbee v. 19 Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)(quoting Cox v. Califano, 20 587 F.2d 988, 991 (9th Cir. 1978)). 21 by Cox is not met, and the claimant may have been prejudiced, the 22 interests of justice demand that the case be remanded. 23 Sullivan, 975 F.2d at 561 (citing Vidal v. Harris, 637 F.2d 710, 24 714-715 (9th Cir. 1981)); see also Widmark v. Barnhart, 4546 F.3d at 25 1069; Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). 26 the ALJ s duty is to scrupulously and conscientiously He When the heavy burden imposed Higbee v. Here, the record is not adequately developed to evaluate whether 27 substantial evidence supports the Commissioner s interpretation of the 28 medical opinion evidence and the determination to adopt the medical 10 1 expert s opinion while not adopting the treating physician s opinion. 2 The record contains almost no treating medical evidence or therapy 3 notes, despite clear indications elsewhere in the record - such as Dr. 4 Zimmerman s initial evaluations, the CHARLEE referral, and Plaintiff s 5 testimony that Plaintiff underwent therapy and treatment on at least 6 a semi-regular basis. 7 the opinion of the medical expert, which was adopted by the 8 Commissioner, that Plaintiff was on a maintenance course of 9 treatment and that she s maintaining with the regimen. Accordingly, the court cannot properly evaluate Under these 10 circumstances, particularly the heightened responsibility to 11 scrupulously develop the record in light of the fact that Plaintiff 12 was unrepresented at the hearing and clear indications of a 13 significant gap in the record that may be prejudicial, remand for 14 further proceedings is appropriate. 15 561. Higbee v. Sullivan, 975 F.2d at 16 E. ISSUE TWO: MEDICATION SIDE EFFECTS 17 In the second claim, Plaintiff argues that the ALJ did not make 18 specific findings as to her allegation of medication side effects. [JS 19 7-8.] 20 her medications were Celexa, Ibuprofen, Klonopin and Vicodin. [AR 21 155.] 22 and that the Vicodin resulted in nausea. [Id.] 23 Plaintiff testified that her medications were Seroquel, Celexa and 24 Klonopin. [AR 24.] 25 later at the hearing that Plaintiff gets sleepy from the medication 26 and can t function and needs to nap. [AR 41.] 27 decision, the ALJ rejected the proposition that Plaintiff s medication 28 side effects presented significant functional limitations, stating As part of her disability application, Plaintiff reported that Plaintiff reported that the Klonopin resulted in memory loss At the hearing, Jayne Campbell, a third party witness, testified 11 In the administrative 1 that, Although the claimant alleged that her medications make her 2 sleepy, no side effects are objectively documented or corroborated. 3 There is no evidence that the doctor substituted medications in an 4 attempt to produce less symptomatology or relieve side effects. [AR 5 14.] 6 Contrary to Plaintiff s assertion, the ALJ did make specific 7 findings as to the claim of medication side effects, and they were 8 supported by the record. 9 effects alleged by Plaintiff; moreover, a treatment note by Dr. There was no documentation of the side 10 Zimmerman indicated that there were no reported side effects. [AR 11 184.] 12 adjusted in response to side effects; for example, the record 13 indicates that Plaintiff was still taking Klonopin from the time of 14 her application filing to the date of the hearing. 15 found that Plaintiff s subjective symptom statements and other 16 testimony were not entirely credible, which Plaintiff does not contest 17 as an issue in the present action, and Plaintiff s challenge to the 18 ALJ s finding that Ms. Campbell s testimony was not entirely credible 19 is without merit, as discussed below. 20 not warrant reversal of the ALJ s decision. Neither was there evidence that Plaintiff s medications were Moreover, the ALJ Accordingly, this issue does 21 F. 22 In the final claim, Plaintiff asserts that the ALJ did not ISSUE THREE: LAY TESTIMONY AND STATEMENTS 23 properly consider the written statements and hearing testimony of 24 Jayne Campbell, Plaintiff s friend. [JS 9-11.] 25 Ms. Campbell completed a Function Report - Adult - Third Party 26 describing Plaintiff s daily activities and other functions. [AR 133- 27 40.] 28 and that she sees Plaintiff fifteen hours per week for bible study. On February 2, 2007, Ms. Campbell wrote that she has known Plaintiff for nine years 12 1 [AR 133.] Ms. Campbell also wrote, among other things, that 2 Plaintiff s anxiety makes it difficult to sleep, that driving is too 3 stressful for Plaintiff, that Plaintiff has problems with memory, 4 concentration, and focusing on instructions, and that Plaintiff does 5 not handle stress or changes in routine well. [AR 134, 136, 138, 139.] 6 At the hearing on December 18, 2008, Ms. Campbell testified that she 7 sees Plaintiff three times a week for bible meetings and gives 8 Plaintiff rides to the grocery store and doctor s appointments. [AR 9 40.] Ms. Campbell also testified that Plaintiff has anxiety and 10 depression, that Plaintiff s medications cause sleepiness so that 11 Plaintiff can t function and needs to nap, that Plaintiff withdraws 12 and can t deal with people, and that Plaintiff had physical problems 13 such as plantar fasciitis. [AR 41-42.] 14 In the administrative decision, the ALJ stated that, after 15 reading and considering Ms. Campbell s statements, he found that 16 these statements are only credible to the extent that the claimant 17 can do the work described by the vocational expert. [AR 14.] 18 noted that Plaintiff s daily activities included cleaning, cooking, 19 laundry, shopping, and taking care of her children. [Id.] 20 stated that Ms. Campbell s statements regarding Plaintiff s impaired 21 memory and other limitations may be true, but that the medical 22 opinions in the record did not support a disabling level of impaired 23 functioning. [Id.] 24 professional and was not competent to make a diagnosis or argue the 25 severity of the claimant s symptoms in relationship to her ability to 26 work. [Id.] 27 overcome the medical evidence and that it has not yet come to a 28 point at which untrained, medically unqualified relatives can have The ALJ The ALJ The ALJ noted that Ms. Campbell is not a medical Finally, the ALJ noted that third party evidence do not 13 1 their kindly attempts to help the claimant overcome the opinions of 2 medically trained personnel. [AR 14.] 3 ALJ s evaluation failed to properly consider Ms. Campbell s 4 statements and revealed a highly troubling and fundamentally unfair 5 judicial bias toward lay witness statements. [JS 10.] 6 Plaintiff contends that the The testimony of lay witnesses about their own observations 7 regarding the claimant s impairments constitutes competent evidence 8 that must be taken into account and evaluated by the Commissioner in 9 the disability evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 10 885 (9th Cir. 2006); Stout v. Commissioner, Social Sec. Admin., 454 11 F.3d 1050, 1053 (9th Cir. 2006). 12 unless the ALJ gives reasons that are germane to that witness. 13 Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 14 (9th Cir. 2008); Stout v. Commissioner, 454 F.3d at 1053 (citing 15 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); Bayliss v. 16 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 17 F.3d 503, 511 (9th Cir. 2001). 18 is one such reason. 19 Lewis v. Apfel, 236 F.3d at 511). 20 evaluation of Ms. Campbell s statements satisfied this standard. 21 ALJ accepted statements by Ms. Campbell that were consistent with 22 evidence of Plaintiff s activities and objective medical evidence, but 23 rejected the portions of her statements that did not meet this 24 standard. 25 substantial evidence and was not erroneous. 26 427 F.3d at 1218 (upholding rejection of lay witness testimony that 27 was inconsistent with Plaintiff s activities and objective evidence in 28 the record). Such testimony cannot be discounted Inconsistency with medical evidence Bayliss v. Barnhart, 427 F.3d at 1218 (citing In this case, the ALJ s detailed The The ALJ s rejection of those statements was supported by See Bayliss v. Barnhart, Accordingly, this claim is without merit. 14 1 G. REMAND FOR FURTHER PROCEEDINGS 2 The decision whether to remand for further proceedings is within 3 the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 4 1175-1178 (9th Cir. 2000). 5 further proceedings, or where the record has been fully developed, it 6 is appropriate to exercise this discretion to direct an immediate 7 award of benefits. 8 remand for further proceedings turns upon their likely utility). 9 However, where there are outstanding issues that must be resolved 10 before a determination can be made, and it is not clear from the 11 record that the ALJ would be required to find the claimant disabled if 12 all the evidence were properly evaluated, remand is appropriate. 13 Here, as set out above in the discussion of Issue One, outstanding 14 issues remain before a finding of disability can be made. 15 Accordingly, remand is appropriate. Where no useful purpose would be served by Harman, 211 F.3d at 1179 (decision whether to 16 VI. Id. ORDERS 17 Accordingly, IT IS ORDERED that: 18 1. The decision of the Commissioner is REVERSED. 19 2. This action is REMANDED to defendant, pursuant to Sentence 20 Four of 42 U.S.C. § 405(g), for further proceedings as discussed 21 above. 22 23 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. 24 25 26 27 DATED: November 30, 2009 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 28 15

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