Richard Guerra v. Michael J Astrue, No. 5:2009cv02274 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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Richard Guerra v. Michael J Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 RICHARD GUERRA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-02274-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on December 22, 2009, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for social security income (“SSI”). On March 2, 21 2010, the parties consented to proceed before the undersigned United 22 States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). 23 filed a Joint Stipulation on August 16, 2010, in which: plaintiff seeks 24 an order reversing the Commissioner’s decision and remanding this case 25 for 26 administrative 27 Commissioner’s decision be affirmed. 28 Joint Stipulation under submission without oral argument. the payment of benefits proceedings; or, and alternatively, defendant requests The parties for further that the The Court has taken the parties’ Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 Plaintiff filed an application for a period of SSI on March 19, 4 2008.1 5 have been disabled since February 27, 2008,2 due to back injury and 6 bipolar disorder. 7 experience as a telephone solicitor, landscape laborer, fast food cook, 8 golf cart attendant, greenskeeper, and egg processor. (Administrative Record (“A.R.”) 98-100.) (A.R. 103, 108.) Plaintiff claims to Plaintiff has past relevant work (A.R. 13, 109.) 9 10 After the Commissioner denied plaintiff’s claim initially and upon 11 reconsideration (A.R. 46-51, 54-59), plaintiff requested a hearing 12 (A.R. 60). 13 appeared and testified at a hearing before Administrative Law Judge 14 Michael D. Radensky (“ALJ”). 15 Reinhart also testified. 16 the ALJ denied plaintiff’s claim (A.R. 8-14), and the Appeals Council 17 subsequently denied plaintiff’s request for review of the ALJ’s decision 18 (A.R. 1-4). On July 28, 2009, plaintiff, who was represented by counsel, (A.R. 15-43.) (A.R. 38-39, 41-42.) Vocational expert David On September 23, 2009, That decision is now at issue in this action 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 The ALJ found that plaintiff has not engaged in substantial gainful 23 activity since February 27, 2008, the alleged onset date of plaintiff’s 24 25 1 26 It appears that plaintiff filed disability claims in the past; however, because those claims were denied and not appealed, those claims are not at issue here. 27 2 28 Plaintiff’s onset date was changed to February 27, 2008, to comport with his work history. (A.R. 10, 103.) 2 1 claimed disability. 2 the following severe impairments: status post lumbar surgery, history 3 of spinal meningitis, and anxiety. (Id.) 4 plaintiff does not have an impairment or combination of impairments that 5 meets or equals in severity any impairment listed in 20 C.F.R. Part 404, 6 Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). 7 (A.R. 8 allegations were not entirely credible. 496.) (A.R. 10.) Additionally, The ALJ determined that plaintiff has the ALJ The ALJ also determined that found that plaintiff’s pain (A.R. 13.) 9 10 After reviewing the record, the ALJ determined that plaintiff has 11 the residual functional capacity (“RFC”) to perform a limited range of 12 light work as defined in 20 C.F.R. § 416.967(b). 13 pertinent part, the ALJ determined that “[n]on-exertionally, [plaintiff] 14 is able to perform work in a non-public setting and [plaintiff] should 15 avoid intense interpersonal interactions with co-workers, supervisors, 16 and members of the public.” (A.R. 11.) In (Id.) 17 18 Based on plaintiff’s RFC, the ALJ determined that plaintiff was 19 capable of performing his past relevant work as an egg processor. (A.R. 20 13.) 21 within the meaning of the Social Security Act since February 27, 2008. 22 (A.R. 14.) Accordingly, the ALJ concluded that plaintiff was not disabled 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 27 decision to determine whether it is free from legal error and supported 28 by substantial evidence in the record as a whole. 3 Orn v. Astrue, 495 1 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is “‘such relevant 2 evidence as a reasonable mind might accept as adequate to support a 3 conclusion.’” 4 a mere scintilla but not necessarily a preponderance.” 5 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 6 record can constitute substantial evidence, only those ‘reasonably drawn 7 from the record’ will suffice.” 8 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The “evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 9 10 Although this Court cannot substitute its discretion for that of 11 the Commissioner, the Court nonetheless must review the record as a 12 whole, “weighing both the evidence that supports and the evidence that 13 detracts from the [Commissioner’s] conclusion.” 14 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 15 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 16 responsible for determining credibility, resolving conflicts in medical 17 testimony, and for resolving ambiguities.” 18 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 19 20 The Court will uphold the Commissioner’s decision when the evidence 21 is susceptible to more than one rational interpretation. 22 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 23 review only the reasons stated by the ALJ in his decision “and may not 24 affirm the ALJ on a ground upon which he did not rely.” 25 at 630; see also Connett, 340 F.3d at 874. 26 the Commissioner’s decision if it is based on harmless error, which 27 exists only when it is “clear from the record that an ALJ’s error was 28 ‘inconsequential to the ultimate nondisability determination.’” Robbins 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 2 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 3 at 679. 4 5 DISCUSSION 6 7 Plaintiff makes the following claims: (1) the ALJ did not consider 8 plaintiff’s pain testimony properly; (2) the ALJ failed to consider 9 plaintiff’s alleged side effects from medications; (3) the ALJ did not 10 consider the opinions of plaintiff’s treating physicians properly;3 and 11 (4) the ALJ improperly determined that plaintiff did not meet or equal 12 Listing 1.04. (Joint Stipulation (“Joint Stip.”) at 3-4.) 13 14 I. The ALJ’s Rejection Of Plaintiff’s Pain Testimony Was Improper. 15 16 The law is well-settled that, once a disability claimant produces 17 evidence of an underlying physical impairment that is reasonably likely 18 to be the source of his subjective symptom(s), the subjective testimony 19 as to the severity of the symptoms must be considered. 20 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 21 F.2d 341, 345 (9th Cir. 2001)(en banc); see also 20 C.F.R. § 416.929(a) 22 (explaining how pain and other symptoms are evaluated). 23 makes a finding of malingering based on affirmative evidence thereof, he 24 or she may only find an applicant not credible by making specific 25 findings as to credibility and stating clear and convincing reasons for Moisa v. “Unless an ALJ 26 27 28 3 Although presented separately, for purposes of clarity, the Court will address plaintiff’s claims regarding his treating physicians together. 5 1 each.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); 2 see Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996)(“Once a 3 claimant meets the Cotton test [Cotton v. Bowen, 799 F.2d 1403, 1407 4 (9th Cir. 1986)] and there is no affirmative evidence suggesting [he] is 5 malingering, the ALJ may reject the claimant’s testimony regarding the 6 severity of [his] symptoms only if he makes specific findings stating 7 clear and convincing reasons for doing so.”); see also Lester v. Chater, 8 81 F.3d 821 (9th Cir. 1996). 9 must be “sufficiently specific” to allow a reviewing court to conclude 10 that the ALJ rejected the claimant’s testimony on permissible grounds 11 and did not arbitrarily discredit the claimant’s testimony. 12 F.3d at 885. If the ALJ’s interpretation of the claimant’s testimony is 13 reasonable and is supported by substantial evidence, it is not the 14 Court’s role to “second-guess” it. Rollins v. Massanari, 261 F. 3d 853, 15 857 (9th Cir. 2001). Further, the ALJ’s credibility findings Moisa, 367 16 17 In this case, the ALJ concluded that plaintiff’s “medically 18 determinable impairments could reasonably be expected to cause the 19 alleged symptoms.” 20 malingering by plaintiff. 21 plaintiff’s credibility must be “clear and convincing.” (A.R. 13.) Further, the ALJ cited no evidence of Accordingly, the ALJ’s reason for rejecting 22 23 In his decision, the ALJ stated that plaintiff’s “statements 24 concerning the intensity, persistence and limiting effects of [his 25 alleged] symptoms are not credible to the extent they are inconsistent 26 with the [RFC] assessment.” 27 testified that his back problems keep him from working and make “it real 28 hard to like sit down for long periods of time or stand up or anything (A.R. 13.) 6 At the hearing, plaintiff 1 like that.” (A.R. 29.) 2 comfortable lying down and spends five hours out of an eight-hour day 3 lying 4 allegations of back pain to be not credible, the ALJ’s boilerplate 5 statement 6 required, for rejecting plaintiff’s pain testimony.4 7 ALJ’s boilerplate statement is not “sufficiently specific” to allow this 8 Court to determine whether the ALJ rejected plaintiff’s testimony on 9 permissible grounds. down. (A.R. does not Plaintiff also testified that he is most 29-30.) While constitute a the clear ALJ and may find convincing plaintiff’s reason, as Additionally, the 10 To further discredit plaintiff’s pain testimony, the ALJ stated 11 12 that “the medical evidence 13 behaviors.” 14 detract from plaintiff’s credibility, the evidence cited by the ALJ -– 15 namely, that plaintiff requested that his pain medication be renewed at 16 each medical visit (A.R. 11) –- does not constitute substantial evidence 17 to support such a conclusion.5 (A.R. 11.) is clearly suggestive of drug-seeking While evidence of drug seeking behavior could In fact, instead of detracting from 18 19 20 21 22 23 24 25 26 27 28 4 Further, although the ALJ may find that plaintiff’s “problems with working and maintaining employment are much more related to his mental problems than his back pain” (A.R. 12), the ALJ, nevertheless, must give clear and convincing reasons for rejecting plaintiff’s pain testimony. 5 “Several cases approve discounting the testimony of a claimant who has engaged in drug-seeking behavior, . . . but none has defined what constitutes drug-seeking behavior.” Kellems v. Astrue, 2010 U.S. App. LEXIS 13263, *8 (7th Cir. 2010). However, “[c]laimants in these cases do have a common thread, . . . each obtained, or attempted to obtain, pain medication by deceiving or manipulating a medical professional.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Simila v. Astrue, 573 F.3d 503, 519 (7th Cir. 2009); Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009); Berger v. Astrue, 516 F.3d 538, 546 (7th Cir. 2008); Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003). In this case, however, the ALJ cited no evidence that plaintiff attempted to obtain pain medication by deceiving or manipulating a medical professional. 7 1 plaintiff’s credibility, plaintiff’s behavior could support a finding of 2 significant pain. 3 2001)(noting that plaintiff’s “constant quest for medical treatment and 4 pain relief” refuted the ALJ’s finding that claimant lacked credibility 5 about her pain and physical limitations). See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 6 7 Moreover, while defendant offers several reasons to explain the 8 ALJ’s conclusion regarding plaintiff’s alleged drug-seeking behaviors, 9 the Court cannot entertain these post hoc rationalizations. See, e.g., 10 Connett, 340 F.3d at 874 (finding that “[i]t was error for the district 11 court to affirm the ALJ’s credibility decision based on evidence that 12 the ALJ did not discuss”). 13 14 15 II. The ALJ Failed To Consider The Side Effects Of Plaintiff’s Medications. 16 17 In evaluating symptoms, SSR 96-7p specifically requires 18 consideration of the “type, dosage, effectiveness, and side effects of 19 any medication the individual takes or has taken to alleviate pain or 20 other symptoms.” 21 Circuit has held that “the side effects of medications can have a 22 significant impact on an individual’s ability to work and should figure 23 in the disability determination process.” Varney v. Sec’y of Health and 24 Human Servs., 846 F.2d 581, 585 (9th Cir. 1988)(superseded by statute on 25 other grounds as stated in Bunnell, 947 F.2d at 345). 26 “chooses to disregard a claimant’s testimony as to the subjective 27 limitations of side effects, he must support that decision with specific 28 findings similar to those required for excess pain testimony.” See also 20 C.F.R. § 416.929(c)(3)(iv). 8 The Ninth Thus, if the ALJ Id. 1 In this case, the ALJ failed to provide specific reasons for 2 rejecting plaintiff’s testimony regarding the side effects of his 3 medications. At 4 medications, Norco 5 Plaintiff also testified that Methadone makes him nauseous, and his 6 nausea lasts for a “couple [of] hours,” every day.6 7 ALJ’s decision, however, does not reference plaintiff’s alleged side 8 effects, and therefore, it is unclear whether the ALJ considered 9 plaintiff’s alleged side effects and/or the effect they may have on his 10 ability to function in the workplace.7 Further, although defendant cites 11 various reasons to disregard plaintiff’s alleged side effects, the Court 12 cannot affirm the ALJ’s decision based upon post hoc rationalizations. 13 See Connett, 340 F.3d at 874. the hearing, and plaintiff Methadone, make testified him that drowsy. his pain (A.R. 30.) (A.R. 32.) The 14 15 16 III. The ALJ Did Not Commit Reversible Error In Connection With His Consideration Of The Opinions Of Plaintiff’s Physicians. 17 18 An ALJ must provide “clear and convincing reasons” for rejecting 19 the uncontradicted opinion of either a treating or examining physician. 20 Lester, 81 F.3d at 830. 21 treating or examining physician, an ALJ must provide “specific and 22 legitimate reasons that are supported by substantial evidence in the 23 record.” Id. at 830-31. To reject the contradicted opinion of a However, an ALJ “need not discuss all evidence 24 25 6 26 27 28 The record also contains reports indicating that Norco causes plaintiff “stomach problems.” (See, e.g., A.R. 147, 159.) 7 To the extent the ALJ rejects plaintiff’s alleged side effects based on his “drug-seeking behaviors,” the ALJ’s reasoning is unpersuasive for the reasons set forth supra. 9 1 presented” to him. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 2 1984)(citation omitted; emphasis in original); see also Howard v. 3 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)(ALJ need not discuss every 4 piece of evidence). An ALJ must explain only why “significant probative 5 evidence has been rejected.” 6 quotations and citation omitted). Vincent, 739 F.2d at 1395 (internal 7 8 A. Dr. Raval 9 10 Plaintiff contends that the ALJ did not consider the opinion of 11 plaintiff’s treating physician, Niren Raval, D.O., regarding plaintiff’s 12 bowel and urinary incontinence, properly. 13 committed with respect to the consideration of Dr. Raval’s treatment 14 notes. No reversible error was 15 16 The medical record contains two treatment notes from Dr. Raval that 17 document plaintiff’s complaints and symptoms of urinary and fecal 18 incontinence. 19 note states that plaintiff’s incontinence problems were “significant” 20 following surgery, but have “gotten better.” (A.R. 206, 245.) In pertinent part, the later treatment (A.R. 245.) 21 22 Although the ALJ did not reference Dr. Raval’s treatment notes 23 specifically in his decision, the ALJ did reference the medical records 24 from Arrowhead Regional Medical Center, where Dr. Raval practiced. 25 ALJ noted that these medical records made mention of plaintiff’s 26 “incontinence secondary to an old condition of spinal meningitis.” 27 (A.R. 11.) The Contrary to plaintiff’s contention, however, the record 28 10 1 contains no opinion8 by Dr. Raval or any other physician that plaintiff’s 2 incontinence causes him any limitations. 3 opinion, if any, the ALJ failed to consider. 4 plaintiff testified that he did not think his “urine problems” kept him 5 from working. 6 in failing to consider Dr. Raval’s treatment notes was harmless.9 (A.R. 32.) Therefore, it is unclear what Moreover, at the hearing, Accordingly, any error committed by the ALJ 7 8 B. Dr. Hudson 9 10 Plaintiff also contends that the ALJ did not consider the findings 11 of plaintiff’s treating psychiatrist,10 Marcia Hudson, M.D., properly. 12 Plaintiff’s chief complaint appears to be that the ALJ did not consider 13 plaintiff’s Global Assessment of Functioning (GAF) score of 45 as 14 assessed by Dr. Hudson. 15 half months prior to plaintiff’s alleged disability onset date, Dr. 16 Hudson performed an Adult Psychiatric Evaluation on plaintiff. On December 7, 2007, approximately two and a At that 17 18 8 19 20 Pursuant to 20 C.F.R. § 416.927(a)(2), “[m]edical opinions are statements . . . that reflect judgments about the nature and severity fo your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 21 9 22 23 24 25 26 Further, as defendant properly notes, plaintiff’s subjective symptoms alone are insufficient to establish a medically determinable physical impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005)(‘“under no circumstances may the existence of an impairment be established on the basis of symptoms alone’”)(quoting SSR 96-4p); SSR 96-4p, 1996 SSR LEXIS 11 at *3, 1996 WL 374187, at *1 (“regardless of how many symptoms an individual alleges, or how genuine the individual’s complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings”). 27 10 28 Dr. Hudson is viewed more properly as an examining physician, because she appears to have examined plaintiff only once. 11 1 time, Dr. Hudson assessed plaintiff with a GAF score of 45. (A.R. 201.) 2 The ALJ’s failure to discuss plaintiff’s GAF score does not 3 4 constitute reversible error. Under the Social Security regulations, an 5 ALJ is not required “to take the GAF score into account in determining 6 the extent of an individual’s disability; while the scores may help the 7 ALJ assess the claimant’s disability, it is not essential and the ALJ’s 8 failure to rely on the GAF does not constitute an improper application 9 of the law.” Quintanar v. Astrue, 2010 U.S. Dist. LEXIS 26637, *26-*27 10 (C.D. Cal. Mar. 19, 2010)(citations omitted); 65 Fed. Reg. 50746, 50764- 11 65 (August 21, 2000) (“The GAF scale . . . does not have a direct 12 correlation 13 listing.”); McFarland v. Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 2008) 14 (finding the ALJ’s failure to address plaintiff’s GAF scores was not 15 legal error); see also Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 16 (6th Cir. 2002)(“The ALJ’s failure to reference the GAF score in the 17 RFC, standing alone, does not make the RFC inaccurate.”). to the severity requirements in our mental disorders 18 19 Moreover, contrary that ALJ plaintiff’s 22 County Mental Health, Phoenix Community Counseling, during the relevant 23 time period when Dr. Hudson examined plaintiff. (A.R. 12.) In addition, 24 Dr. 25 determination, which recognized plaintiff’s severe mental impairments 26 and, thus, included work-related functional limitations. 27 ALJ’s findings are supported by substantial evidence. In fact, Dr. 28 Hudson did not opine that plaintiff had any disabilities, impairments, inconsistent 12 with Dr. no findings. The ALJ referred to the treatment records from San Bernardino not “disregarded” is 21 are or there indication findings “ignored” contention, 20 Hudson’s the to the Hudson’s ALJ’s RFC Further, the 1 or work-related functional limitations.11 2 3 4 Accordingly, there is no basis for finding error in connection with the ALJ’s consideration of Dr. Hudson’s opinion. 5 6 7 IV. The ALJ Did Not Err In Determining That Plaintiff’s Impairments Did Not Meet Or Equal Listing 1.04. 8 9 Plaintiff contends that the ALJ failed to analyze and consider 10 plaintiff’s combined impairments properly before determining that they 11 did not meet or equal the impairments set forth in Listing 1.04. 12 Stip. at 26-29, 32.) (Joint No material error occurred. 13 14 Plaintiff bears the burden of proving that his impairment or 15 combination of impairments meets or equals the criteria of a Listing. 16 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see Sullivan v. 17 Zebley, 493 U.S. 521, 530-31 (1990)(burden is on the claimant to show 18 that his or her impairment meets all of the specified medical criteria 19 for a Listing or to present medical findings equal in severity to all 20 the criteria for the one most similar listed impairment). 21 and mental conditions contained in the Listings are considered so severe 22 that “they are irrebuttably presumed disabling, without specific finding 23 as to the claimant’s ability to perform his past relevant work or any 24 other jobs.” The physical Lester, 81 F.3d at 828; see Zebley, 493 U.S. at 532 25 26 27 28 11 Moreover, as defendant properly noted, a week before plaintiff’s GAF score was assessed, plaintiff admitted to receiving unemployment benefits (A.R. 200) –- benefits that are premised on an admission that the claimant is able and willing to work. (Joint Stip. at 20.) 13 1 (noting that the Listings were “designed to operate as a presumption of 2 disability that makes further inquiry unnecessary”). 3 4 An ALJ must evaluate the relevant evidence to determine whether a 5 claimant’s impairment or impairments meet or equal one of the specified 6 impairments set forth in the Listings. 7 C.F.R. § 416.920(a)(4)(iii). 8 support a conclusion that a claimant’s impairment” does not meet or 9 equal a Listing. Lewis, 236 F.3d at 512; 20 A “boilerplate finding is insufficient to Lewis, 236 F.3d at 512; see, e.g., Marcia v. Sullivan, 10 900 F.2d 172, 176 (9th Cir. 1990)(noting that the ALJ’s unexplicated 11 finding at Step Three was reversible error). 12 analysis and findings at Step Three, however, will not constitute 13 reversible error when: 14 medical evidence supports a conclusory finding; and with respect to 15 equivalency, plaintiff fails to proffer a theory or evidence showing 16 that his combined impairments equal a Listing. 17 14. An ALJ’s lack of formal the ALJ’s subsequent discussion of the relevant Lewis, 236 F.3d at 513- 18 19 In this case, plaintiff failed to carry his burden with respect to 20 establishing that his impairments meet or equal the impairments set 21 forth in Listing 1.04. 22 compression or spinal arachnoiditis, which are necessary impairments to 23 support a Listing 1.04A or a Listing 1.04B finding, respectively. 24 Zebley, 493 U.S. at 530 (noting that “[f]or a claimant to show that his 25 impairment matches a listing, it must meet all of the specified medical 26 criteria”). With respect to Listing 1.04C, even if the Court were to 27 accept all of plaintiff’s alleged impairments, plaintiff, at best, meets 28 some, but not all, of the requisite medical criteria. Plaintiff presented no evidence of nerve root 14 Critically, 1 plaintiff fails to present any evidence that he has an “inability to 2 ambulate effectively”12 3 1.04C finding. 4 some of [the specified medical] criteria, no matter how severely, does 5 not qualify”). 6 evidence 7 Accordingly, plaintiff did not meet his burden. –- a specified medical criteria for a Listing Id. (noting that “[a]n impairment that manifests only Additionally, plaintiff fails to proffer a theory or showing that his combined impairments equal a Listing. 8 9 In addition, the ALJ’s Listing-related evaluation sufficed under 10 the circumstances of this case. 11 “impairments do not singly or in combination cause the severity of 12 symptoms to meet or equal a physical or mental Listing. 13 supported by the opinions of the State Agency reviewing physicians, 14 which are discussed in more detail in finding five.” 15 finding 16 diagnoses, and symptoms (A.R. 11), and he concluded that “[t]he medical 17 evidence does not document any musculoskeletal impairment that meets or 18 equals the severity of listing 1.04” (A.R. 12). 19 ALJ gave “great weight to the evaluation and assessment made by the 20 State Agency reviewing physicians (Exs. 4F, 5F).” five, the ALJ discussed The ALJ stated that plaintiff’s plaintiff’s This finding is (A.R. 10.) physical In impairments, In so concluding, the (Id.) As defendant 21 12 22 23 24 25 26 27 28 As defined by Section 1.00B2 of the Listings, an “inability to ambulate effectively” means an “extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities.” Ineffective ambulation is “defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functions of both upper extremities.” See Section 1.00B2b(1). This provision cites as “examples,” inter alia, an “inability to walk without the use of a walker, two crutches or two canes” or an “inability to use standard public transportation” or an “inability to carry out routine ambulatory activities, such as shopping” or an “inability to climb a few steps at a reasonable pace with the use of a single hand rail.” See Section 1.00B2b(2) 15 1 properly notes, neither the State Agency reviewing physicians nor 2 plaintiff’s physicians opined that plaintiff’s combined impairments met 3 or equaled a listing. 4 above, given that plaintiff did not present evidence or proffer a theory 5 that he meets or equals a 1.04 Listing, any lack of formal analysis by 6 the ALJ does not constitute reversible error. (Joint Stip. at 30.) Further, as discussed 7 8 V. Remand Is Required. 9 10 The decision whether to remand for further proceedings or order an 11 immediate award of benefits is within the district court’s discretion. 12 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 13 useful purpose would be served by further administrative proceedings, or 14 where the record has been fully developed, it is appropriate to exercise 15 this discretion to direct an immediate award of benefits. 16 (“[T]he decision of whether to remand for further proceedings turns upon 17 the likely utility of such proceedings.”). 18 outstanding issues that must be resolved before a determination of 19 disability can be made, and it is not clear from the record that the ALJ 20 would be required to find the claimant disabled if all the evidence were 21 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 22 23 Here, remand is the appropriate remedy to allow the ALJ the 24 opportunity to remedy the above-mentioned deficiencies and errors. See, 25 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 26 further proceedings is appropriate if enhancement of the record would be 27 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 28 (remand appropriate to remedy defects in the record). 16 1 2 On remand, the ALJ must correct the above-mentioned deficiencies 3 and errors. Specifically, the ALJ needs to revisit and reconsider 4 plaintiff’s 5 medications as well as the effect, if any, they have on plaintiff’s 6 ability to work. Further, should the ALJ reject plaintiff’s allegations 7 of pain or medication side effects, the ALJ must set forth clear and 8 convincing reasons for so doing supported by the requisite substantial 9 evidence. pain testimony and reported side effects from his 10 CONCLUSION 11 12 13 Accordingly, for the reasons stated above, IT IS ORDERED that the 14 decision of the Commissioner is REVERSED, and this case is REMANDED for 15 further proceedings consistent with this Memorandum Opinion and Order. 16 17 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 18 copies of this Memorandum Opinion and Order and the Judgment on counsel 19 for plaintiff and for defendant. 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 DATED: December 7, 2010 24 25 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 26 27 28 17
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