Patty Jo Sanders v. Michael J. Astrue, No. 5:2010cv00787 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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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 PATTY JO SANDERS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-787-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 11, 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 July 9, 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 on February 15, 2011, in which: 24 plaintiff seeks an order reversing the Commissioner s decision and 25 remanding this case for the payment of benefits or, alternatively, for 26 further administrative proceedings; and defendant requests that the 27 Commissioner s decision be affirmed or, alternatively, remanded for 28 further administrative proceedings. On The The Court has taken the parties 1 Joint Stipulation under submission without oral argument. 2 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 3 4 Plaintiff 5 filed an application for SSI on July 18, 2006. 6 (Administrative Record ( A.R. ) 53.) 7 November 8, 1967 (A.R. 10),1 claims to have been disabled since May 15, 8 2002, due to chronic obstructive pulmonary disease ( COPD ), congestive 9 heart failure, high blood pressure, diabetes, heart valves collapsing, 10 and back pain (A.R. 53, 62, 68). 11 experience. Plaintiff, who was born on Plaintiff has no past relevant work (A.R. 60.) 12 13 After the Commissioner denied plaintiff s claim initially and upon 14 reconsideration (A.R. 62-66, 68-72), plaintiff requested a hearing (A.R. 15 73, 77-78). On June 4, 2008, plaintiff, who was represented by counsel, 16 appeared and testified at a hearing before Administrative Law Judge 17 Lowell Fortune (the ALJ ). (A.R. 8-47.) At the hearing, testimony was 18 given by medical expert Dr. Samuel Landau, M.D., a Board certified 19 cardiologist and internist (A.R. 11-23, 55), and vocational expert Alan 20 E. Cummings (A.R. 45-46, 53). 21 plaintiff s claim (A.R. 53-61), and the Appeals Council subsequently 22 denied plaintiff s request for review of the ALJ s decision (A.R. 1-3). 23 That decision is now at issue in this action. 24 /// 25 /// On August 6, 2008, the ALJ denied 26 27 28 1 On the date plaintiff filed her application for SSI, plaintiff was 38 years old, which is defined as a younger individual. (A.R. 60; 20 C.F.R. § 416.963.) 2 SUMMARY OF ADMINISTRATIVE DECISION 1 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since July 18, 2006, the date plaintiff filed her application 5 for SSI.2 6 following severe impairments: morbid obesity; diabetes mellitus II; and 7 a right knee disorder.3 8 does not have an impairment or combination of impairments that meets or 9 medically equals one of the impairments listed in 20 C.F.R. § (A.R. 55.) The ALJ determined that plaintiff has the (Id.) The ALJ also determined that plaintiff Part 404, 10 Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). 11 (A.R. 56.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity ( RFC ) to perform a range of work 15 between sedentary and light as defined in 20 C.F.R. § 416.967. 16 57.) (A.R. Specifically, the ALJ found that: 17 18 [Plaintiff] can lift and/or carry 20 pounds occasionally, 10 19 pounds frequently; stand and/or walk two hours in an eight- 20 hour workday, and sit about six hours in an eight-hour 21 workday. Her ability to push and/or pull is unlimited, other 22 23 2 24 25 Although plaintiff has no reported income, plaintiff stated that she washed and dried animals for less than minimum wage between March 20, and August 23, 2003. (A.R. 23-25, 55.) The ALJ found that these earnings did not constitute substantial gainful activity. (A.R. 55.) 26 3 27 28 Relying on Dr. Landau s testimony, the ALJ also determined that plaintiff s following medically determinable impairments are not severe: left knee disorder, asthma/COPD, and hypothyroidism. (A.R. 55.) 3 1 than as shown for lifting and/or carrying. She may 2 occasionally climb ramps or stairs, bend, or stoop and is 3 precluded from climbing ladders, ropes, or scaffolds, from 4 balancing, crouching, kneeling, running, jumping, or working 5 at heights, and she must avoid walking on uneven terrain. 6 [Plaintiff] should also avoid continuous exposure to humidity 7 or wetness, and should not be exposed to fumes, odors, dust, 8 gases or chemicals. 9 conditioned environment. [Plaintiff] should work in a clean, air- 10 11 (Id.) 12 13 The ALJ concluded that, because plaintiff has no past relevant 14 work, transferability of job skills is not an issue. 15 Based on plaintiff s age, education, work experience, and [RFC], and 16 the testimony of Mr. Cummings, the ALJ determined that plaintiff is able 17 to perform work that exists in significant numbers in the national 18 economy. (A.R. 61.) Accordingly, the ALJ concluded that plaintiff has 19 not been under a disability within the meaning of the Social Security 20 Act since July 18, 2006, the date the application was filed. 21 61.) (A.R. 60.) (A.R. 53, 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 26 decision to determine whether it is free from legal error and supported 27 by substantial evidence in the record as a whole. 28 F.3d 625, 630 (9th Cir. 2007). Orn v. Astrue, 495 Substantial evidence is such relevant 4 1 evidence as a reasonable mind might accept as adequate to support a 2 conclusion. 3 a mere scintilla but not necessarily a preponderance. 4 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 5 record can constitute substantial evidence, only those reasonably drawn 6 from the record will suffice. 7 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 8 9 Although this Court cannot substitute its discretion for that of 10 the Commissioner, the Court nonetheless must review the record as a 11 whole, weighing both the evidence that supports and the evidence that 12 detracts from the [Commissioner s] conclusion. 13 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 14 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 15 responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities. 17 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 18 19 The Court will uphold the Commissioner s decision when the evidence 20 is susceptible to more than one rational interpretation. 21 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 22 review only the reasons stated by the ALJ in his decision and may not 23 affirm the ALJ on a ground upon which he did not rely. 24 at 630; see also Connett, 340 F.3d at 874. 25 the Commissioner s decision if it is based on harmless error, which 26 exists only when it is clear from the record that an ALJ s error was 27 inconsequential to the ultimate nondisability determination. Robbins 28 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 5 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 2 at 679. 3 4 DISCUSSION 5 6 Plaintiff makes the following claims: (1) the ALJ improperly 7 determined that plaintiff did not meet or equal Listing 1.02A of the 8 Listing 9 plaintiff s obesity. of Impairments; and (2) the ALJ improperly considered (Joint Stipulation ( Joint Stip. ) at 2, 16.) 10 11 12 I. The ALJ Did Not Consider Properly Whether Plaintiff Met Or Equaled Listing 1.02A. 13 14 Plaintiff contends that the ALJ improperly considered whether 15 plaintiff s combined impairments meet or equal the impairments set forth 16 in Listing 1.02A and did not provide a proper explanation for his 17 determination. (Joint Stip. at 7-9.) As discussed below, the ALJ erred 18 in his assessment of whether plaintiff s disabilities meet or equal 19 Listing 1.02A, because he failed to develop the record.4 20 21 The Listings of Impairments set forth in 20 C.F.R. Part 404, 22 Subpart P, Appendix 1 ( Listings ) were designed to operate as a 23 presumption of disability that makes further inquiry unnecessary. 24 25 26 27 28 4 In addressing whether plaintiff meets or equals Listing 1.02A, both parties focus on whether plaintiff can ambulate effectively, pursuant to Section 1.00B2b of the Listings. However, the requirements of Listing 1.02A must first be met in addition to showing that plaintiff cannot ambulate effectively under Section 1.00B2b. Neither plaintiff nor defendant addresses whether plaintiff meets these foundational requirements, and the ALJ does not address these requirements in his decision. 6 1 Sullivan v. Zebley, 493 U.S. 521, 532 (1990). 2 mental conditions contained in the Listings are considered so severe 3 that they are irrebuttably presumed disabling, without any specific 4 finding as to the claimant s ability to perform his past relevant work 5 or any other jobs. 6 Plaintiff bears the burden of proving that her impairment or combination 7 of impairments meets or equals the criteria of a Listing. 8 Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see Zebley, 493 U.S. at 530- 9 31 (burden is on the claimant to show that his or her impairment meets 10 all of the specified medical criteria for a Listing or to present 11 medical findings equal in severity to all the criteria for the one most 12 similar listed impairment). Indeed, physical and Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995). Tackett v. 13 14 An ALJ must evaluate the relevant evidence to determine whether a 15 claimant s impairment or impairments meet or equal one of the specified 16 impairments set forth in the Listings. 17 512 (9th Cir. 2001); 20 C.F.R. § 416.920(a)(4)(iii). 18 finding is insufficient to support a conclusion that a claimant s 19 impairment does not [meet or equal a Listing]. 20 see also, e.g., Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 21 1990)(noting that the ALJ s unexplicated finding at step three was 22 reversible error). An ALJ s lack of formal analysis and findings at step 23 three, however, will not constitute reversible error when: 24 discussed and evaluated evidence supporting his conclusion in a 25 different section of his decision; and with respect to equivalency, 26 plaintiff offered no theory, plausible or otherwise, as to how his 27 [impairments] combined to equal a listed impairment. 28 at 513-14. 7 Lewis v. Apfel, 236 F.3d 503, A boilerplate Lewis, 236 F.3d at 512; the ALJ Lewis, 236 F.3d 1 Here, plaintiff argues that the medical evidence establishes that 2 she met or equaled the impairments set forth in Listing 1.02A, which 3 governs the major dysfunction of a joint due to any cause. Listing 1.02A 4 is met when a claimant shows: 5 6 [G]ross anatomical deformity (e.g., subluxation, contracture, 7 bony or fibrous ankylosis, instability) and chronic joint pain 8 and stiffness with signs of limitation of motion or other 9 abnormal motion of the affected joint(s), and findings on 10 appropriate 11 narrowing, bony destruction, or ankylosis of the affected 12 joint(s). medically acceptable imaging of joint space 13 14 20 C.F.R. Part 404, Subpart P, Appendix 1, 1.02. 15 of the involvement of one major peripheral weight-bearing joint (i.e. 16 hip, knee, or ankle), resulting in inability to ambulate effectively, as 17 defined in 1.00B2b, must be found to meet Listing 1.02A. In addition, a finding (Id.) 18 19 Section 1.00B2b of the Listings states that an inability to 20 ambulate effectively means an extreme limitation of the ability to 21 walk; i.e., an impairment(s) that interferes very seriously with the 22 individual s ability to independently initiate, sustain, or complete 23 activities. 24 insufficient lower extremity functioning . . . to permit independent 25 ambulation without the use of a hand-held assistive device(s) that 26 limits 27 1.00B2b(1)(emphasis added). 28 alia, an inability to walk without the use of a walker, two crutches or the Ineffective ambulation is defined generally as having functioning of both upper extremities. Section This provision cites as examples, inter 8 1 two canes or an inability to use standard public transportation or an 2 inability to carry out routine ambulatory activities, such as shopping 3 or an inability to climb a few steps at a reasonable pace with the use 4 of a single hand rail. Section 1.00B2b(2)(emphasis added). 5 6 In assessing disability, it is the responsibility of the ALJ to 7 resolve conflicts 8 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 9 hierarchy of in medical physician testimony opinions and considered analyze in the assessing evidence. In the a social 10 security claim, [g]enerally, a treating physician s opinion carries 11 more weight than an examining physician s, and an examining physician s 12 opinion carries more weight than a reviewing physician s. 13 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927(d). 14 The opinions of treating physicians are entitled to the greatest weight, 15 because the treating physician is hired to cure and has a better 16 opportunity to observe the claimant. 17 the treating physician s opinion is contradicted by another doctor, the 18 Commissioner may not reject this opinion without providing specific and 19 legitimate reasons supported by substantial evidence in the record for 20 so doing. Holohan v. Magallanes, 881 F.2d at 751. If Id. 21 22 An ALJ has a special duty to fully and fairly develop the record 23 and to assure that claimant s interest are considered. 24 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 25 416.912(e), additional 26 clarification from your medical source when the report from your medical 27 source contains a conflict or ambiguity that must be resolved, [or] the 28 report does not contain all the necessary information . . . . the Administration will 9 seek Brown v. evidence or See 1 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that [i]f 2 the ALJ thought he needed to know the basis of [the doctor s] opinions 3 in order to evaluate them, he had a duty to conduct an appropriate 4 inquiry ). 5 6 Focusing on the requirements of Section 1.00B2b of the Listings, 7 plaintiff argues that her medical records show that she indeed suffers 8 from the inability to ambulate effectively due to left knee problems and 9 right knee problems. 5 (Joint Stip. at 6.) Plaintiff relies on evidence 10 of record that she was prescribed a walker and wheelchair by Dr. Craig 11 R. Mueller, M.D., her treating physician. 12 further argues that, because Dr. Landau and the ALJ concluded that she 13 should avoid uneven terrain (A.R. 55, 57), and the Listing[s] . . . 14 states that an example of ineffective ambulation includes the inability 15 to walk on rough or uneven surfaces (Joint Stip. at 9), the evidence 16 clearly supports plaintiff s claim of ineffective ambulation, and thus, 17 she meets Listing 1.02A (Joint Stip. at 8-9, 11-12). Finally, plaintiff 18 argues that the ALJ failed to evaluate the relevant evidence before 19 concluding that [plaintiff s] impairments do not meet or equal a listed 20 impairment. (A.R. 286, 289.) Plaintiff (Joint Stip. at 9.) 21 22 23 Here, the ALJ erred by rejecting Dr. Mueller s walker and wheelchair prescriptions without giving any specific and legitimate 24 25 26 5 27 28 Although the ALJ found that only plaintiff s right knee disorder was severe (A.R. 55), medical evidence shows normal alignment at the left knee joint, with some minor degenerative changes at the lateral femoral condyle (A.R. 246). 10 for reasons 2 prescribed a walker and a wheelchair. 3 ALJ pointed to a discrepancy between plaintiff s statement that Dr. 4 Mueller prescribed a wheelchair for her, and the fact that the signature 5 on the wheelchair prescription did not appear to be Dr. Mueller s 6 signature as seen on examination forms. 7 ALJ 8 prescription form. 9 the record (id.) should have triggered the ALJ s duty to develop the also doing so.6 1 highlighted The an record ambiguity (A.R. 59-60.) indicates that plaintiff (A.R. 286, 289.) However, the (A.R. 59-60, 257, 286.) regarding the was dates on The the These unanswered discrepancies in 10 record further.7 11 into these unanswered discrepancies. 12 constitutes error. The ALJ should have contacted Dr. Mueller and inquired The ALJ s failure to do so 13 14 Moreover, the ALJ failed to provide specific and legitimate reasons 15 for disregarding the implicit opinion of Dr. Mueller that plaintiff 16 required a walker or wheelchair to ambulate effectively. The ALJ should 17 have contacted Dr. Mueller and inquired why plaintiff was prescribed a 18 walker and a wheelchair, if the ALJ questioned her need for such 19 assistive devices. Instead the ALJ disregarded this evidence based only 20 on the unanswered discrepancies he found, without fully developing the 21 record by giving plaintiff s treating physician an opportunity to 22 address the discrepancies noted by the ALJ. 23 and State Agency physicians determined that plaintiff could ambulate Even if the medical expert 24 25 26 27 28 6 Dr. Mueller s prescription for a walker and a wheelchair would appear to constitute an implicit opinion that plaintiff cannot ambulate or move effectively without a walker or a wheelchair. 7 The ALJ raises his concern with these discrepancies in the record in his discussion of credibility. (A.R. 59-60.) 11 unanswered plaintiff s 1 effectively (A.R. 165, 168, 223, 254), the ALJ must still provide 2 specific and legitimate reasons for disregarding Dr. Mueller s opinion. 3 4 Therefore, the ALJ s conclusion that plaintiff did not meet Listing 5 1.02A requirements, based on the medical expert and State Agency 6 physicians opinions, is improper. 7 foundational 8 restricted from walking on uneven surfaces but also truly needs a walker 9 or wheelchair, then she will meet the requirements of Listing 1.02A. requirements of Clearly, if plaintiff meets the Listing 1.02A and not only must be 10 The 11 prescription, and if the ALJ rejects Dr. Mueller s apparent opinion that 12 plaintiff needs a walker and/or a wheelchair, the ALJ must provide 13 specific and legitimate reasons for rejecting the treating physician s 14 opinion. ALJ must develop the record regarding the walker/wheelchair 15 16 II. The ALJ Must Review And Reconsider Plaintiff s Obesity. 17 18 Obesity is no longer, nor was it at the time of the ALJ s decision, 19 a listed impairment. See Revised Medical Criteria for Determination of 20 a Disability, Endocrine System and Related Criteria, 64 F.R. 46122 21 (effective October 25, 1999)(former Listing 9.09, Obesity, was removed 22 from Appendix 1, Subpart P of Part 404, the Listing of Impairments). 23 Although obesity is not a listed impairment, an ALJ must consider the 24 effect of a claimant s obesity upon her other impairments, both severe 25 and non-severe, and ability to work. 26 1182 (9th Cir. 2003); see also SSR 02-01p (requiring an ALJ to consider 27 the effects of obesity at several points in the five-step sequential 28 evaluation). Celaya v. Halter, 332 F.3d 1177, An ALJ must evaluate each case based on the information 12 1 in the case record, as obesity may or may not increase the severity of, 2 or functional limitations associated with, of other impairments. 3 02-01p. SSR 4 5 Pursuant to SSR 02-01p, an ALJ must consider how obesity may 6 interact with other impairments and affect whether a claimant meets a 7 Listing: 8 impairments to the extent that the combination of impairments meets the 9 requirements obesity may increase the severity of coexisting or related of a [L]isting. This is especially true of 10 musculoskeletal, respiratory, and cardiovascular impairments. 11 01p, 2000 WL 628049 (Sep. 12, 2002). 12 suffers from both musculoskeletal impairments -- a severe right knee 13 disorder and non-severe left knee disorder -- and the non-severe 14 medically determinable impairment of asthma/COPD. SSR 02- As previously noted, plaintiff 15 16 17 SSR 02-01p details how obesity affects the cardiovascular and respiratory systems, making 18 19 [I]t harder for the chest and lungs to expand. 20 that the respiratory system must work harder to provide needed 21 oxygen. 22 blood to carry oxygen to the body. 23 working harder at rest, its ability to perform additional work 24 is less than would otherwise be expected. This means This in turn makes the heart work harder to pump Because the body is 25 26 Id. Overall, [t]he combined effects of obesity with other impairments 27 may be greater than might be expected without obesity. 28 someone with obesity and arthritis affecting a weight-bearing joint may 13 For example, 1 have more pain and limitation than might be expected from arthritis 2 alone. Id. 3 4 The ALJ properly determined that plaintiff, who is five feet one 5 and a half inches tall and weighs approximately 223 pounds, is morbidly 6 obese and that her obesity is a severe impairment. 7 Considering plaintiff s morbid obesity in his RFC assessment, the ALJ 8 found that, while plaintiff s obesity imposes greater limitations on 9 the claimant s ability to ambulate and sustain physical activities, it 10 does not by itself or in combination with her other impairments meet the 11 requirements of a listing. 12 failed to properly consider the impact of plaintiff s obesity at the 13 various stages of the disability determination process. 14 at 16.) Plaintiff specifically contends that the ALJ failed to consider 15 the 16 determinations, as well as in determining her RFC. impact of her (A.R. 57.) obesity in (A.R. 54-55.) Plaintiff argues that the ALJ making the step (Joint Stip. two and three (Id.) 17 18 Plaintiff argues that there is no indication that the ALJ properly 19 considered the impact of her obesity on her non-severe impairments. 20 This contention, as well as plaintiff s contention that the ALJ erred at 21 step three and in his RFC determination, must be addressed after the ALJ 22 further develops the record, as plaintiff s obesity may exacerbate her 23 non-severe asthma/COPD as well as her severe right knee impairment and 24 her non-severe left knee impairment. 25 26 After furthering developing the record, if the ALJ determines that 27 plaintiff 28 addressed, meets Listing because 1.02A, plaintiff her will 14 obesity be will not presumptively need to disabled be and 1 automatically entitled to disability benefits. 2 determines 3 reconsider how plaintiff s obesity may interact with her current severe 4 and non-severe impairments. 5 record, the ALJ may find that plaintiff s obesity causes the combination 6 of her severe and non-severe impairments to be disabling. 7 236 F.3d at 514 ( The claimant s symptoms must be considered in 8 combination and must not be fragmentized in evaluating their effects. 9 (quoting Lester, 81 F.3d at 829)). that plaintiff does not meet However, if the ALJ Listing 1.02A, he must In view of further development of the See Lewis, 10 11 III. Remand Is Required. 12 13 The decision whether to remand for further proceedings or order an 14 immediate award of benefits is within the district court s discretion. 15 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 16 record has not been fully developed and/or there are outstanding issues 17 that must be resolved before a proper determination of disability can be 18 made, and it is not clear from the record that the ALJ would be required 19 to 20 evaluated, remand is appropriate. find the claimant disabled if all the evidence were Where the properly Id. at 1179-81. 21 22 In this case, remand is the appropriate remedy to allow the ALJ the 23 opportunity to remedy the above-mentioned deficiencies and errors. See, 24 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 25 further proceedings is appropriate if enhancement of the record would be 26 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 27 (remand appropriate to remedy defects in the record). 28 ALJ needs to develop the record 15 regarding the On remand, the walker/wheelchair 1 prescription provided to plaintiff and then reconsider whether plaintiff 2 meets or equals Listing 1.02A in the light of the developed record and 3 her obesity. 4 treating physician that she requires a wheelchair and/or walker to 5 ambulate, the ALJ must set forth specific and legitimate reasons for so 6 doing that are supported by the requisite substantial evidence. 7 after further developing the record, the ALJ determines that plaintiff 8 does not meet Listing 1.02A, the ALJ must reconsider how plaintiff s 9 obesity interacts with her current severe and non-severe impairments, as 10 Further, should the ALJ reject the opinion of plaintiff s If discussed supra. 11 12 CONCLUSION 13 14 Accordingly, for the reasons stated above, IT IS ORDERED that the 15 decision of the Commissioner is REVERSED, and this case is REMANDED for 16 further proceedings consistent with this Memorandum Opinion and Order. 17 18 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 19 copies of this Memorandum Opinion and Order and the Judgment on counsel 20 for plaintiff and for defendant. 21 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 24 DATED: July 6, 2011 25 26 27 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 28 16
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