Effie Barney v. Michael J. Astrue, No. 5:2009cv01733 - Document 21 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (Made JS-6. Case Terminated.) (bem)
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Effie Barney v. Michael J. Astrue Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EFFIE BARNEY, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. ED CV 09-1733 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 20 On September 11, 2009, plaintiff Effie Barney ( Plaintiff ) filed a complaint 21 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 22 Security Administration, seeking review of a denial of supplemental security income 23 benefits. [Docket No. 1.] On March 19, 2010, Defendant filed his answer, along 24 with a certified copy of the administrative record. [Docket Nos. 10, 12.] On April 25 14, 2010, this matter was transferred to the calendar of the undersigned Magistrate 26 Judge. [Docket No. 15.] Both Plaintiff and Defendant subsequently consented to 27 proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). 28 [Docket Nos. 14, 17.] Pursuant to a September 18, 2009 case management order, the Dockets.Justia.com 1 parties submitted a detailed, 14-page joint stipulation for decision on May 21, 2010. 2 [Docket No. 16.] The Court deems the matter suitable for adjudication without oral 3 argument. 4 In sum, having carefully studied, inter alia, the parties joint stipulation and 5 the administrative record, the Court concludes that, as detailed herein, the 6 Administrate Law Judge inappropriately discounted Plaintiff s subjective complaints 7 and thus remands this matter to the Commissioner in accordance with the principles 8 and instructions enunciated in this Memorandum Opinion and Order. 9 I. 10 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff has an eleventh grade education and was 44 years old on her alleged 12 onset date of disability. (See Administrative Record ( AR ) at 84, 561.) Plaintiff is 13 also obese; she is four feet eleven inches and weighs approximately 270 pounds. 14 (Id. at 140.) Her prior relevant work includes employment as a caregiver, sales 15 clerk, assembler, and telemarketer. (Id. at 22, 63, 132-139, 553-554.) 16 On October 7, 2005, nearly five years ago, Plaintiff filed for supplemental 17 security income ( SSI ), claiming that she has been disabled since December 30, 18 2004 due to a brown recluse spider bite, high blood pressure, and a thyroid 19 condition. (See AR at 76, 84.) Plaintiff s application was denied after which she 20 filed a timely request for a hearing. (Id. at 74, 76-80.) 21 On August 2, 2007, approximately two years after her application, Plaintiff, 22 proceeding pro se, appeared and testified at a hearing before an Administrative Law 23 Judge ( ALJ ). (AR at 558, 560-574.) On January 24, 2008, the ALJ issued an 24 unfavorable decision denying Plaintiff s request for benefits ( January 2008 25 Decision ). (Id. at 55-63.) 26 Plaintiff appealed and, on July 11, 2008, the Appeals Council vacated the 27 January 2008 Decision and remanded the case to the ALJ for further proceedings. 28 (See AR at 38-40, 42-45.) The Appeals Council directed the ALJ to give further 2 1 consideration to Plaintiff s residual functional capacity ( RFC ) and obtain 2 supplemental evidence from a vocational expert ( VE ). (Id. at 39.) 3 On February 13, 2009, Plaintiff, represented by counsel, appeared and 4 testified at another hearing before the ALJ. (AR at 539, 541-552.) The ALJ also 5 heard testimony from Joseph Mooney, a VE. (Id. at 539, 553-557.) 6 On April 7, 2009, the ALJ denied Plaintiff s request for benefits. (AR at 12- 7 23.) Applying a well-established five-step sequential evaluation process which is 8 discussed below the ALJ found, at step one, that Plaintiff has not engaged in 9 substantial gainful activity since her SSI application date. (Id. at 14.) 10 At step two, the ALJ found that Plaintiff suffers from severe impairments 11 consisting of [n]on-insulin diabetes mellitus, venous insufficiency in the left lower 12 extremity with transient bouts of left lower extremity cellulitis, hypertension, and 13 obesity with a history of diffuse body pain and obesity related sleep apnea[, and] 14 questionably severe depression. (AR at 14 (bold omitted).) 15 At step three, the ALJ determined that the evidence does not demonstrate that 16 Plaintiff s impairments, either individually or in combination, meet or medically 17 equal the severity of any listing set forth in the Social Security regulations.1/ (AR at 18 14.) The ALJ then assessed Plaintiff s RFC2/ and determined that she can perform 19 20 light work, but limited her to occasional climbing, stooping, kneeling, crouching, 21 and crawling. (AR at 15 (bold omitted).) Based on Plaintiff s RFC, the ALJ 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 found, at step four, that Plaintiff lacks the ability to perform her past relevant work. 2 (Id. at 22.) 3 At step five, based on Plaintiff s vocational factors and the VE s testimony, 4 the ALJ found that there are jobs that exist in significant numbers in the national 5 economy that [Plaintiff] can perform, including cleaner, housekeeper, and 6 packager. (AR at 22 (bold omitted).) Thus, the ALJ concluded that Plaintiff was not 7 suffering from a disability as defined by the Act because she could adjust to her 8 impairment and find another type of gainful employment. (Id. at 12, 23.) 9 Plaintiff filed a timely request for review of the ALJ s decision, which was 10 denied by the Appeals Council. (AR at 4-6, 8.) The ALJ s decision stands as the 11 final decision of the Commissioner. 12 II. 13 APPLICABLE LEGAL STANDARDS 14 A. Five-Step Inquiry To Ascertain A Cognizable Disability 15 A claimant must satisfy three fundamental elements to be eligible for 16 disability benefits: (1) a medically-determinable impairment; (2) the impairment 17 prevents the claimant from engaging in substantial gainful activity; and (3) the 18 impairment is expected to result in death or to last for a continuous period of at least 19 12 months. 42 U.S.C. § 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 20 Cir. 1999). A well-established five-step sequential inquiry is utilized to assess 21 whether a particular claimant satisfies these three elements. The inquiry proceeds as 22 follows: 23 First, is the claimant engaging in substantial gainful activity? If so, the 24 claimant cannot be considered disabled. 25 Second, does the claimant suffer from a severe impairment, to wit, one 26 continuously lasting at least 12 months? If not, the claimant is not disabled. 27 Third, does the claimant s impairment or combination of impairments meet or 28 equal an impairment specifically identified as a disability by the Commissioner 4 1 under 20 C.F.R. part 404, subpart P, appendix 1? If so, the claimant is automatically 2 determined to be disabled. 3 Fourth, is the claimant capable of performing his or her past work? If so, the 4 claimant is not disabled. 5 Fifth, does the claimant have the so-called residual functional capacity to 6 perform some other type of work? The critical question posed here is whether the 7 claimant can, in light of the impairment and his or her age, education and work 8 experience, adjust to another form of gainful employment? 9 If a claimant is found disabled or not disabled along any of these steps, 10 there is no need to complete the remaining inquiry. 20 C.F.R. §§ 404.1520(a)(4) & 11 416.920(a)(4); Tackett, 180 F.3d at 1098-99. 12 B. Standard of Review on Appeal 13 This Court is empowered to review decisions by the Commissioner to deny 14 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 15 Administration must be upheld if they are free of legal error and supported by 16 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 17 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 18 are based on legal error or are not supported by substantial evidence in the record, 19 the court may reject the findings and set aside the decision to deny benefits. 20 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 21 242 F.3d 1144, 1147 (9th Cir. 2001). 22 Substantial evidence is more than a mere scintilla, but less than a 23 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 24 evidence which a reasonable person might accept as adequate to support a 25 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 26 at 459. To determine whether substantial evidence supports the ALJ s finding, the 27 reviewing court must review the administrative record as a whole, weighing both 28 the evidence that supports and the evidence that detracts from the ALJ s 5 1 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 2 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 3 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 4 evidence can reasonably support either affirming or reversing the ALJ s decision, 5 the reviewing court may not substitute its judgment for that of the ALJ. Id. 6 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 7 III. 8 ISSUES PRESENTED 9 10 Two disputed issues are presented for decision here: 1. Whether the ALJ s finding that Plaintiff can stand and/or walk for six 11 hours a day adequately considers the opinions of treating physician Dr. Kedlaya and 12 consultative examiner Dr. Tamiry as well as the evidence of morbid obesity and 13 osteoarthritis in the right ankle and knee, (see Joint Stip. at 4-7); and 14 2. Whether the finding that Ms. Barney s subjective complaints are not 15 credible is supported by substantial evidence. (See id. at 4, 9-11.) 16 At this juncture, the Court finds the latter issue to be dispositive of this matter, 17 and does not reach the first issue. 18 IV. 19 DISCUSSION AND ANALYSIS 20 Plaintiff contends that the ALJ failed to properly assess her credibility and 21 improperly disregarded her allegations of subjective symptoms. (See Joint Stip. at 922 11.) Defendant argues that Plaintiff s credibility was properly weighed and found 23 not credible, particularly because of her inconsistent testimony concerning the 24 performance of her daily chores and her medical history reflecting that her cellulitis 25 had improved. (Id. at 12-13.) The Court concurs with Plaintiff. 26 27 28 A. The ALJ Must Provide Clear and Convincing Reasons For Discounting Plaintiff s Subjective Complaints Plaintiff, of course, carries the burden of producing objective medical 6 1 evidence of his or her impairments and showing that the impairments could 2 reasonably be expected to produce some degree of the alleged symptoms. Benton ex 3 rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). But once a plaintiff 4 meets that burden, medical findings are not required to support the alleged severity 5 of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 6 Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997, as amended Sept. 17, 7 1997) ( [A] claimant need not present clinical or diagnostic evidence to support the 8 severity of his pain. ) (internal citation omitted). 9 Under these circumstances, an ALJ can then reject a plaintiff s subjective 10 complaint only upon (1) finding evidence of malingering, or (2) expressing clear 11 and convincing reasons for doing so. Benton, 331 F.3d at 1040. The ALJ may 12 consider the following factors in weighing a plaintiff s credibility: (1) his or her 13 reputation for truthfulness; (2) inconsistencies either in the plaintiff s testimony or 14 between the plaintiff s testimony and his or her conduct; (3) his or her daily 15 activities; (4) his or her work record; and (5) testimony from physicians and third 16 parties concerning the nature, severity, and effect of the symptoms of which she 17 complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 18 Here, the ALJ did not find evidence of malingering. (See generally AR at 12- 19 23; see id. at 18-19 (ALJ adopting the opinion of consultative examiner Sandra M. 20 Eriks, M.D. ( Dr. Eriks )), 184-189 (Dr. Eriks reporting Plaintiff to be a good 21 historian )). Thus, the ALJ s reasons for rejecting Plaintiff s credibility must rest on 22 clear and convincing reasons. See Benton, 331 F.3d at 1040. General findings are 23 insufficient; rather, the ALJ must identify what testimony is not credible and what 24 evidence undermines the claimant s complaints. Lester v. Chater, 81 F.3d 821, 834 25 (9th Cir. 1995, as amended April 9, 1996); Reddick, 157 F.3d at 722. 26 B. Plaintiff s Subjective Complaints 27 In Plaintiff s disability report, dated June 28, 2006, approximately seven 28 months after she filed her application, Plaintiff stated that her impairments have 7 1 limited her walking and ability to stand and she is not able to clean [her] house 2 much like [she] use[d] to or wash clothes and cook for [her] husband at all. (AR at 3 100, 104, 107.) Plaintiff also reported that she experiences cramps from head to 4 feet, including headaches, back aches, and pain in her legs. (Id. at 100.) With 5 respect to her daily activities, Plaintiff indicated that she is not allow[ed] to do 6 much of what [she] use[d] to do in terms of cooking, cleaning, bathing, making 7 her bed, brushing her hair, washing her face, and brushing her teeth. (Id. at 104.) 8 At the administrative hearing, Plaintiff testified that she stopped working in 9 December of 2004 after she was bit by a spider and experienced swelling and 10 ulcers on her leg. (AR at 541-543.) Plaintiff explained that she was hospitalized for 11 approximately three weeks. (Id. at 543.) Plaintiff s medical treatment subsequently 12 established that she developed cellulitis3/ as a result of the spider bite. (See, e.g., id. 13 at 341-342.) Plaintiff also testified that she suffers from arthritis in her right knee 14 and ankle, and now it s . . . running from [her] leg all the way up to [her] hips. 15 (Id. at 546.) Plaintiff reported that she feels tingling and numb in her legs due to 16 neuropathy from diabetes. (Id.) Further, Plaintiff used a walker at the hearing and explained that an 17 18 emergency room physician prescribed the walker for her when she was diagnosed 19 with arthritis in her ankle. (AR at 549.) Plaintiff stated that she can walk less than 20 a block, can stand no more than ten minutes at a time, can sit for approximately 15 21 to 20 minutes before she need[s] to change . . . position[s]. (Id. at 550.) 22 C. ALJ s Purported Reasons For Discounting Plaintiff s Credibility 23 In rejecting Plaintiff s credibility, the ALJ incorporated his credibility 24 discussion from the January 2008 Decision. (AR at 16 ( [A]s discussed in the prior 25 decision dated January 24, 2008, and incorporated herein, I find [Plaintiff s] 26 27 3/ Cellulitis is the [i]nflammation of cellular or connective tissue. Stedman s 28 Medical Dictionary 307 (26th ed. 1995). 8 1 subjective complaints do not credibly establish a residual functional capacity less 2 than found herein. ).) In the January 2008 Decision, with respect to Plaintiff s 3 credibility, the ALJ merely found that Plaintiff s own residual functional capacity 4 assessment . . . [is] quite exaggerated in its limitations and unsupported by 5 documented pathology. (Id. at 62.) 6 In the instant decision, the ALJ discounted Plaintiff s allegations of pain 7 because her statements are not consistent. (AR at 16.) In particular, the ALJ 8 found that Plaintiff reported occasional back pain but denied any back pain at the 9 time of the consultative examination [with Dr. Eriks] and she also admitted that her 10 symptoms are relieved with taking Celebrex. (Id.) The ALJ also found that while 11 [Plaintiff] reported she does little in the way of daily activities and household chores 12 . . .[, Plaintiff] describes her activities of daily living to Dr. Eriks as . . . [doing] all of 13 the cooking, cleaning, shopping, and most of the driving for her husband and 14 herself. (Id.) The ALJ further rejected Plaintiff s credibility based on the fact that 15 she does not use an assistive device for ambulation. (Id.) 16 Having scrutinized the AR, the Court is persuaded that the ALJ failed to 17 provide clear and convincing reasons and/or substantial evidence for discounting 18 Plaintiff s credibility, as determined in both the January 2008 Decision and the 19 instant decision. 20 21 22 D. ALJ Inappropriately Discounted Plaintiff s Credibility In The January 2008 Decision As an initial matter, other than his recitation of portions of Plaintiff s medical 23 history and her testimony, the ALJ does not specify in his January 2008 Decision 24 which symptom testimony he found not credible or provide any clear and convincing 25 reasons for his rejection of Plaintiff s pain allegations. See Benton, 331 F.3d at 1041 26 (The ALJ must state which symptom testimony he found not credible with enough 27 specificity to allow a reviewing court to confirm that the testimony was rejected on 28 permissible grounds and not arbitrarily. ). 9 1 Moreover, the ALJ erred in rejecting Plaintiff s credibility in the January 2008 2 Decision based on the lack of documented pathology. (AR at 62.) Plaintiff 3 provided sufficient medical evidence of underlying impairments that were 4 reasonably likely to cause the symptoms she described. For instance: 5 1. Consultative examiner Dr. Eriks described Plaintiff s [t]andem gait as 6 somewhat difficult due to obesity and [h]eel and toe walking as declined. 7 (AR at 187.) 8 2. Treatment note, dated January 21, 2009, diagnosed arthritis in 9 Plaintiff s right ankle and reported pain due to arthritis. (Id. at 221.) 10 3. Treatment note, dated September 26, 2008, reported poor circulation 11 and pain in legs and diagnosed diabetes. (Id. at 225.) 12 4. Diagnostic x-ray report, dated September 26, 2008, found [m]arginal 13 blunt osteophytes on the tibial plateau and patella and diagnosed osteoarthritis. (Id. 14 at 237.) 15 5. Treatment note, dated January 26, 2007, described Plaintiff as 16 morbidly overweight and suffering from recurrent cellulitis of the lower 17 extremities and chronic leg edema. (Id. at 298.) 18 6. Treating physician s January 2006 report indicated extensive and very 19 severe cellulitis. (Id. at 342.) 20 7. Treating physician report, dated January 4, 2006, indicated Plaintiff 21 complained of pain and diagnosed severe left leg cellulitis. (Id. at 424.) 22 Because Plaintiff produced sufficient medical evidence of underlying 23 impairments that are likely to cause pain and other subjective symptoms, the ALJ 24 erred to the extent he rejected Plaintiff s credibility based upon a lack of objective 25 findings to support her allegations. See Bunnell, 947 F.2d at 345 ( [O]nce the 26 claimant produces objective medical evidence of an underlying impairment, [the 27 ALJ] may not reject a claimant s subjective complaints based solely on a lack of 28 objective medical evidence to fully corroborate the alleged severity of pain. ); Social 10 1 Security Ruling ( SSR ) 96-7P,4/ 1996 WL 374186, at *1 ( An individual s 2 statements about the intensity and persistence of pain or other symptoms or about 3 the effect the symptoms have on his or her ability to work may not be disregarded 4 solely because they are not substantiated by objective medical evidence. ). 5 E. ALJ Inappropriately Discounted Plaintiff s Credibility in the Instant Decision 6 With respect to the ALJ s reasons for discounting Plaintiff s credibility as 7 8 discussed in his most recent decision (e.g., inconsistencies in her reports of back 9 pain, inconsistencies in her reports of daily activities, and lack of use of an assistive 10 device for ambulation ), the Court finds that the ALJ s reasons are not clear and 11 convincing and/or are not supported by the record. Three particular reasons guide 12 this Court s decision. First, the Court disagrees with the ALJ s conclusion that Plaintiff s testimony 13 14 is internally inconsistent because she reported occasional back pain but denied any 15 back pain at the time of the consultative examination [with Dr. Eriks] and she also 16 admitted that her symptoms are relieved with taking Celebrex. (AR at 16.) Dr. 17 Eriks s precise statements were, Plaintiff states that she has occasionally had 18 problems with her back; although, is not currently having problems with that at this 19 time. . . . [She] is doing much better on the Celebrex[.] (Id. at 184.) As such, 20 Plaintiff did not make inconsistent statements regarding her back pain. Rather, Plaintiff explained to Dr. Eriks that she occasionally suffers from 21 22 23 24 25 26 27 4/ The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (internal citations omitted). 28 11 1 back pain, but that her symptoms were improving on Celebrex. Thus, the ALJ s 2 paraphrasing of Dr. Eriks report is not entirely accurate. See Reddick, 157 F.3d at 3 722-23 ( [T]he ALJ developed his evidentiary basis by not fully accounting for the 4 context of materials or all parts of the testimony and reports. His paraphrasing of 5 record material is not entirely accurate regarding the content or tone of the record. ); 6 see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) ( [The treating 7 physician s] statements must be read in context of the overall diagnostic picture he 8 draws. That a person who suffers from severe panic attacks, anxiety, and depression 9 makes some improvement does not mean that the person s impairments no longer 10 seriously affect her ability to function in a workplace. ). 11 The Court fails to see how Plaintiff s statements to Dr. Eriks regarding her 12 occasional back pain undermine her credibility. 13 Second, the ALJ rejected Plaintiff s pain testimony because she reported to 14 Dr. Eriks that she performed all of the cooking, cleaning, shopping, and most of the 15 driving despite previously stating that she does little in the way of daily activities 16 and household chores. (AR at 16.) The Court agrees that the ALJ may infer from 17 Plaintiff s statements that her activity levels have increased. 18 However, there is objective medical evidence in the record that accounts for 19 Plaintiff s fluctuating activity levels. The ALJ s own statement that Plaintiff 20 experiences transient bouts of cellulitis, (see AR at 16), illustrates the fact that 21 Plaintiff s pain and activity level may differ from one day to the next. 22 Further, Plaintiff did not state, nor did Dr. Eriks question her as to how 23 frequently Plaintiff performs, or the extent of, these daily activities. For instance, 24 Dr. Eriks does not specify whether Plaintiff spends numerous hours creating an 25 elaborate six-course dinner, or whether she cooks by placing a prepackaged meal 26 in the microwave. In short, the ALJ s reliance on Plaintiff s statement to Dr. Eriks 27 in making a daily activities finding is questionable and insufficient to explain how 28 Plaintiff s daily activities translate into an ability to perform work as a cleaner, 12 1 housekeeper, or packager. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 2 1990) (ALJ errs in failing to make a finding to the effect that ability to perform daily 3 activities translated into the ability to perform appropriate work); Reddick, 157 F.3d 4 at 722 (only if a plaintiff s level of activity is inconsistent with her alleged 5 limitations will these activities have any bearing on claimant s credibility); see also 6 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ( This court has repeatedly 7 asserted that the mere fact that a plaintiff has carried on certain daily activities, such 8 as grocery shopping, driving a car, or limited walking for exercise, does not in any 9 way detract from her credibility as to her overall disability. ); Fair v. Bowen, 885 10 F.2d 597, 603 (9th Cir. 1989) ( many home activities are not easily transferable to 11 what may be the more grueling environment of the workplace[] ). 12 Third, the ALJ rejected Plaintiff s credibility because she does not use an 13 assistive device for ambulation. (AR at 16.) However, the ALJ was aware that 14 Plaintiff used a walker at the hearing, (see id. at 549 (Plaintiff s attorney questioning 15 Plaintiff, And you came to the hearing room with a walker and was that 16 prescribed? )), and Plaintiff testified that an emergency room physician prescribed 17 the walker for her when she was diagnosed with arthritis in her ankle. (Id.) The 18 record shows that an emergency room physician did, in fact, prescribe a walker to 19 assist Plaintiff. (Id. at 212 (emergency room discharge instructions dated January 20 17, 2009, prescribing Plaintiff with a walker).) 21 Moreover, the record indicates Plaintiff likely needs a walker for assistance. 22 For instance, Plaintiff s Field Office Disability Report, completed by A. Olmedo and 23 dated October 7, 2005, states that Plaintiff had to hold on to the edge of the desk to 24 help her stand, she had a hard time walking [because] her legs were swollen[,] her 25 left leg looked bru[is]ed and swollen as well as very dry and scar[r]ed. (AR at 15026 151.) Accordingly, the ALJ s conclusion that Plaintiff does not use an assistive 27 device for ambulation is contradicted by the record. 28 13 1 V. 2 REMAND IS APPROPRIATE The court has discretion to remand or reverse and award benefits. McAllister 3 4 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 5 useful purpose would be served by further proceedings, or where the record has been 6 fully developed, it is appropriate to exercise this discretion to direct an immediate 7 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 8 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 9 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 10 resolved before a determination can be made, and it is not clear from the record that 11 the ALJ would be required to find plaintiff disabled if all the evidence were properly 12 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 13 F.3d at 1179-80. Here, there are outstanding issues which must be resolved before a final 14 15 determination can be made. On remand, the ALJ shall reconsider Plaintiff s 16 subjective complaints of excess pain and the resulting functional limitations, and 17 either credit Plaintiff s testimony or provide clear and convincing reasons supported 18 by substantial evidence for rejecting them. In addition, if necessary, the ALJ shall 19 obtain additional information and clarification regarding Plaintiff s functional 20 limitations. The ALJ shall reassess the medical opinions in the record and provide 21 sufficient reasons under the applicable legal standard for rejecting any portion of the 22 medical opinions. The ALJ shall then proceed through steps four and five to 23 determine what work, if any, Plaintiff is capable of performing.5/ Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 24 25 REVERSING the decision of the Commissioner denying benefits and 26 27 5/ In light of the Court s remand instructions, it is unnecessary for the Court to 28 address Plaintiff s remaining contention. (See Joint Stip. at 4-7.) 14 1 REMANDING the matter for further administrative action consistent with this 2 decision. 3 4 Dated: July 20, 2010 5 ______________________________ Hon. Jay C. Gandhi United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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