Alice Cunningham v. Michael J. Astrue, No. 5:2010cv00618 - Document 16 (C.D. Cal. 2011)

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ALICE CUNNINGHAM, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-00618-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on May 7, 2010, seeking review of the 19 denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). 21 May 24, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to 22 proceed before the undersigned United States Magistrate Judge. 23 parties filed a Joint Stipulation ( Joint Stip. ) on January 5, 2011, in 24 which: 25 and remanding this case for the payment of benefits or, alternatively, 26 for further administrative proceedings;1 and defendant requests that the On The plaintiff seeks an order reversing the Commissioner s decision 27 1 28 In her statement of the relief requested, plaintiff requests remand for the payment of benefits or for further administrative proceedings. (Joint Stip. at 21.) In her argument, however, plaintiff contends only that this matter should be remanded for further 1 Commissioner s decision be affirmed or, alternatively, remanded for 2 further administrative proceedings. 3 Joint Stipulation under submission without oral argument. The Court has taken the parties 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On January 28, 2003, plaintiff filed an application for SSI. 8 (Administrative Record ( A.R. ) 520.) Plaintiff, who was born on 9 January 12, 1963 (A.R. 530),2 claims to have been disabled since August 10 31, 2001 (A.R. 520), due to depression, affective mood disorder, asthma, 11 emphysema, joint pain and cramps, back disorders, reflex sympathetic 12 dystrophy, gastroesophageal reflux disease, and an ulcer (see, e.g., 13 A.R. 34, 42; Joint Stip. at 2). 14 experience as a child care provider, custodian, and general clerk. 15 (A.R. 530.) Plaintiff has past relevant work 16 17 After the Commissioner denied plaintiff s claim initially and upon 18 reconsideration (A.R. 34-38, 42-46, 520), plaintiff requested a hearing 19 (A.R. 47). 20 counsel, appeared and testified at a hearing before Administrative Law 21 Judge Frederick J. Graf ( ALJ Graf ). 22 2004, ALJ Graf denied plaintiff s claims (A.R. 11-17), and the Appeals 23 Council subsequently denied plaintiff s request for review of ALJ Graf s 24 decision (A.R. 4-6). On November 15, 2004, plaintiff, who was represented by (A.R. 503-16.) On December 13, On May 24, 2005, plaintiff sought review in this 25 26 proceedings. 27 2 At the time of the ALJ s decision, plaintiff was 47 years old, which is defined as a younger individual. (A.R. 530; citing 20 C.F.R. § 416.963.) 28 (Joint Stip. at 14.) 2 1 Court, which remanded the case for further proceedings based upon the 2 parties February 7, 2006 Stipulation To Voluntary Remand Pursuant to 3 Sentence Four of 42 U.S.C. § 405(g) ( Stipulation ). (A.R. 520.) 4 5 On March 18, 2006, the Appeals Council effectuated the Court s 6 Order, vacated ALJ Graf s December 13, 2004 decision, and remanded the 7 matter for further action consistent with the parties Stipulation. 8 (A.R. 9 subsequent, duplicative SSI application filed by plaintiff on December 10 520, 558-60.) The Appeals Council also 29, 2005, be consolidated with the remanded case. directed that a (A.R. 520, 559.) 11 12 Pursuant to the Orders of the District Court and Appeals Council, 13 plaintiff, who was 14 Administrative Law Judge Lowell Fortune (the ALJ ) on September 13, 15 2006, and April 13, 2007. 16 2007, the ALJ denied plaintiff s claim (A.R. 686-96), and the Appeals 17 Council subsequently denied plaintiff s request for review of the ALJ s 18 decision (A.R. 520). 19 which, on January 10, 2008, remanded the case for further administrative 20 proceedings 21 Stipulation To Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. 22 § 405(g) and To Entry of Judgment. 23 2008, the Appeals Council vacated the ALJ s June 29, 2007 decision and 24 remanded the case for further action consistent with the January 10, 25 2008 Order. ( January represented by counsel, testified (A.R. 520, 599-631, 640-682.) before On June 29, Plaintiff again sought review in this Court, 10, 2008 Order ) based upon (A.R. 697-700.) the parties On February 29, (A.R. 520, 706.) 26 27 28 On October 7, 2009, plaintiff, who was represented by counsel, testified at a hearing before the ALJ. 3 (A.R. 1472-1503.) Vocational 1 expert Sandra Fioretti and plaintiff s daughter, Amber Cunningham, also 2 testified. 3 plaintiff s claim. 4 this action. (1497-1502.) On February (A.R. 520-32.) 5, 2010, the ALJ denied That decision is now at issue in 5 6 SUMMARY OF ADMINISTRATIVE DECISION 7 The ALJ found that plaintiff has not engaged in substantial gainful 8 9 activity since January 28, 2003, the application date. (A.R. 523.) The 10 ALJ determined that plaintiff has the following severe impairments: 11 status post injury to right hand; migraine headaches; mood disorder, 12 not otherwise specified (NOS); depression; and alcohol dependence. 13 (Id.) 14 impairment or a combination of impairments that meets or equals one of 15 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 16 C.F.R. § 416.920(d), 416.925, 416.926). The ALJ also determined that plaintiff does not have an (Id.) 17 18 After reviewing the record, the ALJ determined that plaintiff has 19 the residual functional capacity ( RFC ) to perform light work as 20 follows: 21 22 [plaintiff] can lift and carry 20 pounds occasionally and 10 23 pounds frequently; she can stand and/or walk for 6-hours out 24 of an 8-hour work day; and she can sit for 6 hours out of an 25 8-hour work day. 26 ropes, but she can frequently climb ramps and stairs. She can 27 frequently balance, bend, stoop, crouch, and kneel; she can 28 occasionally crawl. She cannot climb ladders, scaffolds, or She is limited to simple, repetitive 4 1 tasks. She cannot perform work requiring hypervigilance; she 2 cannot perform 3 responsible for the safety of others; and she cannot work on 4 an assembly line. work involving safety operations or be 5 6 (A.R. 524.) 7 8 The ALJ concluded that plaintiff is unable to perform her past 9 relevant work. (A.R. 530.) However, having considered plaintiff s age, 10 education, work experience, RFC, and the testimony of the vocational 11 expert, the ALJ found that jobs exist in the national economy that 12 plaintiff 13 cafeteria attendance [sic]. 14 concluded that plaintiff has not been under a disability, as defined in 15 the Social Security Act, since January 28, 2003, the date her SSI 16 application was filed. could perform, including cleaner, (A.R. 531.) toy assembler, and Accordingly, the ALJ (A.R. 531.) 17 18 STANDARD OF REVIEW 19 20 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 21 decision to determine whether it is free from legal error and supported 22 by substantial evidence in the record as a whole. 23 F.3d 625, 630 (9th Cir. 2007). 24 evidence as a reasonable mind might accept as adequate to support a 25 conclusion. 26 a mere scintilla but not necessarily a preponderance. 27 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 28 record can constitute substantial evidence, only those reasonably drawn Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 5 The evidence must be more than Connett v. 1 from the record will suffice. Widmark v. Barnhart, 454 F.3d 1063, 2 1066 (9th Cir. 2006)(citation omitted). 3 4 Although this Court cannot substitute its discretion for that of 5 the Commissioner, the Court nonetheless must review the record as a 6 whole, weighing both the evidence that supports and the evidence that 7 detracts from the [Commissioner s] conclusion. 8 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 9 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). Desrosiers v. Sec y of The ALJ is 10 responsible for determining credibility, resolving conflicts in medical 11 testimony, and for resolving ambiguities. 12 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 13 14 The Court will uphold the Commissioner s decision when the evidence 15 is susceptible to more than one rational interpretation. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 17 review only the reasons stated by the ALJ in his decision and may not 18 affirm the ALJ on a ground upon which he did not rely. 19 at 630; see also Connett, 340 F.3d at 874. 20 the Commissioner s decision if it is based on harmless error, which 21 exists only when it is clear from the record that an ALJ s error was 22 inconsequential to the ultimate nondisability determination. Robbins 23 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 24 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 25 at 679. 26 /// 27 /// 28 /// 6 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 DISCUSSION 2 3 4 Plaintiff claims that the ALJ improperly considered and rejected the opinion of her treating physician. (Joint Stip. at 3-14.) I. and 5 6 7 The ALJ Improperly Considered Rejected The Opinion Of Plaintiff s Treating Physician. 8 9 It is the responsibility of the ALJ to analyze evidence and resolve 10 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 11 (9th Cir. 1989). 12 assessing a social security claim, [g]enerally, a treating physician s 13 opinion carries more weight than an examining physician s, and an 14 examining physician s opinion carries more weight than a reviewing 15 physician s. 16 2001); 20 C.F.R. § 416.927. In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 17 18 The opinions of treating physicians are entitled to the greatest 19 weight, because the treating physician is hired to cure and has a better 20 opportunity to observe the claimant. 21 a treating physician s opinion is not contradicted by another physician, 22 it may be rejected only for clear and convincing reasons. 23 Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted 24 by another doctor, a treating physician s opinion may only be rejected 25 if the ALJ provides specific and legitimate reasons supported by 26 substantial evidence in the record. Magallanes, 881 F.2d at 751. When Lester v. Id. 27 28 An ALJ has a special duty to fully and fairly develop the record 7 1 and to assure that claimant s interests are considered. 2 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 3 416.912(e), additional 4 clarification from your medical source when the report from your medical 5 source contains a conflict or ambiguity that must be resolved, [or] the 6 report does not contain all the necessary information . . . . 7 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that [i]f 8 the ALJ thought he needed to know the basis of [the doctor s] opinions 9 in order to evaluate them, he had a duty to conduct an appropriate 10 the Administration will seek Brown v. evidence or See inquiry ). 11 12 In his decision, the ALJ appears to reject the opinion of Dr. Swati 13 Thacker, M.D., plaintiff s treating psychiatrist, because plaintiff 14 usually discusses family events rather than mental issues at her 15 mental health appointments, and Dr. Thacker does not record objective 16 findings other than an occasional no evidence of psychosis and 17 [plaintiff] [i]s somatic and ha[s] difficultly assuming responsibility. 18 (A.R. 19 significant 20 assessment form [f]or the usual reasons pertain[ing] to these types of 21 check-marked forms and because the assessment is not supported by Dr. 22 Thacker s treatment notes. 23 displayed chronic, out of control behavior during the mental health 24 visits, it would seem reasonable that Dr. Thacker would have documented 25 those incidents. 26 not willing to accept Dr. Thacker s assessment at fact [sic] value. 27 (Id.) 530.) The ALJ specifically weight to Dr. notes Thacker s (Id.) May that 12, he 2008 does not mental give health The ALJ notes that if plaintiff Yet, no unusual behavior is noted, and [the ALJ is] 28 8 1 To the extent the ALJ rejects Dr. Thacker s opinion because 2 plaintiff usually discusses family events rather than mental issues, 3 the ALJ s reasoning is unpersuasive. It appears that plaintiff s family 4 causes her great stress and anxiety, and thus, it is not surprising that 5 she discusses various family matters at her appointments with Dr. 6 Thacker. 7 discuss her mental issues at her appointments, when she does discuss 8 them, they do not appear to be insignificant -- e.g., plaintiff claims, 9 inter alia, that she: Further, while it is true that plaintiff does not always sees images before she falls asleep (A.R. 866); 10 sees ghosts in her house (A.R. 892); sees shadows from the corners of 11 her eyes (A.R. 1398, 1426); sees images of faces, rocking horses, and 12 monsters (A.R. 1392); hears people talking to her (A.R. 892); and feels 13 paranoid (A.R. 866, 892), overwhelmed (A.R. 1391, 1415), and stressed 14 (A.R. 1391). Accordingly, in view of the nature of plaintiff s reported 15 mental issues, the ALJ s reasoning i.e., that plaintiff usually 16 discusses 17 constitute a legitimate ground for rejecting Dr. Thacker s opinion. family matters instead of her mental issues cannot 18 19 With respect to the ALJ s contention that Dr. Thacker did not 20 record objective findings in his treatment notes aside from the 21 occasional finding that there was no evidence of psychosis and 22 [plaintiff] was somatic and had difficulty assuming responsibility 23 (A.R. 530) the ALJ appears to ignore or inaccurately summarize the 24 content of plaintiff s treatment records. 25 F.3d 715, 723 (9th Cir. 1998)(reversing and remanding case because ALJ s 26 characterization of the record was not entirely accurate regarding the 27 content or tone ); see also Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 28 Cir. 1984)(holding that it was error for an ALJ to ignore or misstate 9 See Reddick v. Chater, 157 1 competent evidence in the record to justify his conclusion). 2 to the ALJ s contention, Dr. Thacker did record objective findings 3 beyond those described supra. 4 alia, that plaintiff has major depressive disorder recurrent type with 5 psychotic symptoms (A.R. 891), dysthymic disorder (A.R. 1418, 1426, 6 1432), emotional blunting (A.R. 1426), poor motivation (A.R. 892), poor 7 attention span (id.), [p]aranoid/persecutory thought content (A.R. 8 891), 9 depressed auditory mood and visual (A.R. 869, Contrary Significantly, Dr. Thacker noted, inter perceptual process 891), affect sad disturbances (A.R. 891), (id.), anxious 10 mood/affect (A.R. 891), poor frustration tolerance (A.R. 1390), and poor 11 compliance with follow-up (A.R. 1391). 12 plaintiff is emotional (A.R. 1392), passive aggressive (A.R. 1394, 13 1412), 14 childlike (A.R. 1391), wants someone to look after her (id.), and 15 socially withdraws herself over any conflict (A.R. 1433).3 16 the extent the ALJ attempts to reject Dr. Thacker s findings based on 17 his purported failure to report objective findings, the ALJ s reasoning 18 is unpersuasive and does not constitute a legitimate reason for the 19 wholesale dismissal of Dr. Thacker s treatment records and the objective 20 findings contained therein.4 codependent (A.R. 1394), Dr. Thacker also noted that socially withdrawn (A.R. 1421), Thus, to 21 22 23 24 3 In addition, a July 2007 Client Recovery Plan, completed by Connie Patterson, MHS, and signed by Dr. Thacker, indicates, inter alia, that plaintiff has a moderate dysfunction rating as evidenced by her decreased concentration, increased memory loss, non-complaint [sic] affect, paranoia, delusion[s], and reports of hearing voices and seeing people who are not there. (A.R. 1414.) 25 4 26 27 28 In support of the ALJ s decision, defendant notes that, in an October 2005 Adult Psychiatric Evaluation ( Psychiatric Evaluation ) in which Dr. Thacker diagnosed plaintiff with major depressive disorder recurrent type with psychotic features, Dr. Thacker found that plaintiff s behavior, appearance, thought process, insight, judgment, and memory were all within normal limits. (Joint Stip. at 17.) 10 1 Lastly, the ALJ s reasons for rejecting Dr. Thacker s May 12, 2008 2 mental health assessment form ( mental health form ) are also, at 3 present, unpersuasive. 4 that plaintiff has moderate limitations in her ability to make simple 5 work-related decisions and interact appropriately with the public, and 6 marked limitations in her ability to perform all other work related 7 activities.5 8 an impairment that can be expected to last for at least 12 months, and 9 is not able to hold [a] job. In the mental health form, Dr. Thacker found Dr. Thacker noted that plaintiff is not a malingerer, has (A.R. 1410.) Citing to Young v. 10 Heckler, 803 F.2d 963 (9th Cir. 1986), the ALJ did not give Dr. 11 Thacker s mental health form significant weight because, it was a check- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, as defendant properly notes, in that same Psychiatric Evaluation, Dr. Thacker also indicated that plaintiff has anxious mood/affect, soft speech, and auditory/visual perception disturbances. (Id.; A.R. 891.) Additionally, although not mentioned by defendant, Dr. Thacker found that plaintiff has paranoid/persecutory thought process, depressed and tearful mood/affect, and Dr. Thacker noted, inter alia, that plaintiff is emotional and has poor motivation, poor attention span, and infrequent eye contact. (A.R. 891-92.) While Dr. Thacker s Psychiatric Evaluation contains both positive and negative findings, it is unclear whether the ALJ reviewed any of these findings as evidenced by his statement that Dr. Thacker did not record any objective findings other than an occasional no evidence of psychosis and [plaintiff] [i]s somatic and ha[s] difficultly assuming responsibility. (A.R. 530.) Accordingly, defendant s attempt to support the ALJ s decision is unpersuasive. 5 Specifically, Dr. Thacker found that plaintiff has marked limitations in her ability to: remember locations and work-like procedures; understand and remember very short and simple instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctural within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted by them; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; and set realistic goals or make plans independently of others. (A.R. 1409-10.) 11 1 marked form, which was not supported by Dr. Thacker s treatment notes. 2 (A.R. 530.) 3 is brief, conclusory, and/or inadequately supported by the medical 4 record,6 in view of the fact that the ALJ appears to have either ignored 5 or improperly summarized Dr. Thacker s treatment notes, the Court cannot 6 determine whether the ALJ properly reduced the weight he gave to the 7 mental health form.7 8 Thacker s treatment notes -- which appear to contain multiple reports of 9 unusual behavior -- may very well support the restrictions contained 10 While an ALJ may give reduced weight to an opinion when it Indeed, plaintiff s reported mental issues and Dr. in Dr. Thacker s mental health form. 11 12 Accordingly, the Court finds that the ALJ erred by improperly 13 considering and rejecting Dr. Thacker s treatment notes and the findings 14 and opinions contained therein. 15 consideration of Dr. Thacker s opinions and findings, and should the ALJ On remand, the ALJ should revisit his 16 17 6 18 19 20 21 22 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(holding that an ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings ); see also Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)(noting that an ALJ may discredit treating physicians opinions that are conclusory, brief, and unsupported by the record as a whole, . . . or by objective medical findings ); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)( When confronted with conflicting medical opinions, an ALJ need not accept a treating physician s opinion that is conclusory and brief and unsupported by clinical findings ). 23 7 24 25 26 27 28 Although defendant proffers several reasons to explain the ALJ s failure to provide specific and legitimate reasons for rejecting Dr. Thacker s opinion, those reasons constitute post hoc rationalizations which the Court cannot entertain. Orn, 495 F.3d at 630 (noting that a court may review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely ); Connett, 340 F.3d at 874 (stating [w]e are constrained to review the reasons the ALJ asserts and [i]t was error for the district court to affirm the ALJ s . . . decision based on evidence that the ALJ did not discuss ). 12 1 elect to give them 2 legitimate 3 mischaracterization of the evidence of record.8 4 the ALJ needs to know the basis of Dr. Thacker s opinion, the ALJ should 5 conduct an appropriate inquiry. reasons no for weight, so he doing should set forth that are not specific based on and a Further, to the extent 6 7 II. Remand Is Required. 8 9 The decision whether to remand for further proceedings or order an 10 immediate award of benefits is within the district court s discretion. 11 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Moreover, as plaintiff properly contends, there is no indication that the ALJ considered the treatment notes from Connie Patterson in determining the nature and severity of plaintiff s impairments. See Social Security Ruling 06-03p, 2006 SSR LEXIS 5, *3 (noting that an ALJ may consider evidence from other sources, such as therapists and clinicians, to understand the nature and severity of a claimant s impairment as well as how the impairment affects a claimant s ability to work); 20 C.F.R. § 416.913(d). While an ALJ has the discretion to determine the appropriate weight to accord the opinion of a source other than an acceptable medical source, such as Connie Patterson, see, e.g., Diaz v. Shalala, 59 F.3d 307, 313-14 (9th Cir. 1995), the ALJ generally should explain the weight given to opinions from . . . other sources, Social Security Ruling 06-03p, 2006 SSR LEXIS 5, *7-*8, *15-*16. Beyond her findings described in footnote 4, supra, Connie Patterson also noted, inter alia, that plaintiff: has a flat/blunted affect, depressed/irritable mood, blank/vacant stare, and slowed speech; and appears somewhat sedated with unsteady gait, and disheveled with wrinkled/soiled clothing, and uncombed hair. (A.R. 1420, 1423, 1425.) However, there is no indication that the ALJ considered any of Patterson s findings in determining the nature and severity of plaintiff s impairments. Further, the ALJ failed to give any reasons for discrediting and/or rejecting her findings. See, e.g., Bain v. Astrue, 319 Fed. Appx. 543, 546 (9th Cir. 2009)(noting that an ALJ has only to provide germane reasons for discrediting the opinion of a non-acceptable medical source)(citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); Kus v. Astrue, 276 Fed Appx. 555, 556 (9th Cir. 2008)(noting that [a]s with other witnesses, the ALJ was required to take into account evidence from [non-acceptable medical sources] unless he or she expressly determine[d] to disregard such testimony and gave reasons for doing so )(quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). This constitutes error. 13 1 useful purpose would be served by further administrative proceedings, or 2 where the record has been fully developed, it is appropriate to exercise 3 this discretion to direct an immediate award of benefits. 4 ( [T]he decision of whether to remand for further proceedings turns upon 5 the likely utility of such proceedings. ). 6 outstanding issues that must be resolved before a determination of 7 disability can be made, and it is not clear from the record that the ALJ 8 would be required to find the claimant disabled if all the evidence were 9 properly evaluated, remand is appropriate.9 Id. at 1179 However, where there are Id. at 1179-81. 10 11 Remand is the appropriate remedy to allow the ALJ the opportunity 12 to remedy the above-mentioned deficiencies and errors. See, e.g., 13 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 14 further proceedings is appropriate if enhancement of the record would be 15 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 16 (remand appropriate to remedy defects in the record). 17 ALJ must correct the above-mentioned deficiencies and errors and further 18 develop the record as appropriate.10 19 to reassess plaintiff s RFC, in which case additional testimony from a On remand, the After doing so, the ALJ may need 20 21 22 23 9 The Court notes that plaintiff appears to have a significant alcohol abuse problem. (See A.R. 526; Joint Stip. at 17-18.) Plaintiff s alcoholism may explain, at least in part, her reported poor compliance with follow-up. (See A.R. 1391.) On remand, it may be appropriate to assess the extent, if any, to which plaintiff s mental health issues would persist absent her alcohol abuse. 24 10 25 26 27 28 Plaintiff contends that [h]ad the ALJ left the record open to obtain additional documentation regarding plaintiff s treatment by her treating psychiatrist he would have obtained the objective medical evidence needed to render a proper decision regarding the plaintiff s mental limitations. (Joint Stip. at 13.) To facilitate the expeditious resolution of this matter, which has been remanded voluntarily on two prior occasions, plaintiff s counsel should collect such documentation promptly and provide it to the ALJ on remand. 14 1 vocational expert likely will be needed to determine what work, if any, 2 plaintiff can perform. 3 CONCLUSION 4 5 6 Accordingly, for the reasons stated above, IT IS ORDERED that the 7 decision of the Commissioner is REVERSED, and this case is REMANDED for 8 further proceedings consistent with this Memorandum Opinion and Order. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 11 copies of this Memorandum Opinion and Order and the Judgment on counsel 12 for plaintiff and for defendant. 13 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: August 25, 2011 16 17 18 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 15

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