Linda Watt v. Michael J Astrue, No. 5:2010cv00938 - Document 15 (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 for further 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 LINDA WATT, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-938-MAN MEMORANDUM OPINION AND ORDER 17 Plaintiff filed a Complaint on June 29, 2010, seeking review of the 18 denial by the Social Security Commissioner (the Commissioner ) of 19 plaintiff s application for supplemental security income ( SSI ). 20 August 4, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), 21 to proceed before the undersigned United States Magistrate Judge. 22 parties filed a Joint Stipulation on March 1, 2011, in which: plaintiff 23 seeks an order reversing the Commissioner s decision and remanding this 24 case 25 administrative 26 Commissioner s decision be affirmed or, alternatively, remanded for 27 further administrative proceedings. 28 Joint Stipulation under submission without oral argument. for the payment of benefits proceedings; and or, alternatively, defendant requests for On The further that the The Court has taken the parties 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 Plaintiff filed an application for SSI. (Administrative Record 4 ( A.R. ) 9, 34.) 5 92),1 claims to have been disabled since October 8, 1999, due to a 6 hearing impairment, arthritis, back injury, asthma, head injury, and 7 throat infection. 8 experience.2 Plaintiff, who was born on December 13, 1956 (A.R. (A.R. 34, 39.) Plaintiff has no past relevant work (A.R. 15.) 9 10 After the Commissioner denied plaintiff s claim initially and upon 11 reconsideration (A.R. 34, 39), plaintiff requested a hearing (A.R. 44). 12 On April 14, 2009, plaintiff, who was not represented by counsel, 13 appeared and testified at a hearing before Administrative Law Judge 14 Joseph D. Schloss (the ALJ ). (A.R. 20-31.) Vocational expert Troy L. 15 Scott also testified. 16 plaintiff s claim (A.R. 9-17), and the Appeals Council subsequently 17 denied plaintiff s request for review of the ALJ s decision (A.R. 1-3). 18 That decision is now at issue in this action (A.R. 26-30.) On July 7, 2009, the ALJ denied 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 The ALJ found that plaintiff has not engaged in substantial gainful 23 activity since May 2, 2007, the application date. 24 determined that plaintiff has the following severe impairments: (A.R. 11.) The ALJ low 25 26 27 28 1 On the date plaintiff filed her application for SSI, plaintiff was 50 years old, which is defined as a person closely approaching advanced age. (A.R. 60; 20 C.F.R. § 416.963.) 2 Plaintiff has not worked since 1984. 2 (A.R. 24.) 1 back pain, arthritis, asthma, and a hearing impairment. (Id.) 2 also impairment 3 combination of impairments that meets or medically equals in severity 4 any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 5 (Id.) determined that plaintiff does not have an The ALJ or 6 7 After reviewing the record, the ALJ determined that plaintiff has 8 the residual functional capacity ( RFC ) to perform medium work as 9 defined in 20 C.F.R. § 416.967(c), with the following exceptions: 10 11 [Plaintiff] should not work in a noisy environment and should 12 have the ability to wear assistive devices for hearing if 13 needed. 14 ropes, 15 unprotected machinery, and at heights. Related to her asthma, 16 the claimant should work in a clean air environment and must 17 avoid extreme heat or cold, wetness, and changes in humidity. [Plaintiff] is precluded from climbing ladders, or scaffolds, from working around vibrations, 18 19 (A.R. 11.) 20 21 The ALJ concluded that, because plaintiff has no past relevant 22 work, [t]ransferability of job skills is not an issue. 23 Based on plaintiff s age, education, work experience, and [RFC], the 24 ALJ determined that plaintiff is able to perform jobs that exist in 25 significant numbers in the national economy. 26 ALJ concluded that plaintiff has not been under a disability within the 27 meaning of the Social Security Act since May 2, 2007, the date the 28 application was filed. (A.R. 16.) 3 (Id.) (A.R. 15.) Accordingly, the 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion. 9 a mere scintilla but not necessarily a preponderance. Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 11 record can constitute substantial evidence, only those reasonably drawn 12 from the record will suffice. 13 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 4 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. Orn, 495 F.3d The Court will not reverse 9 10 DISCUSSION 11 12 Plaintiff makes the following claims: (1) the ALJ failed to 13 properly develop the record regarding plaintiff s treating physician s 14 opinions; (2) the ALJ improperly considered plaintiff s RFC; and (3) 15 using the Dictionary of Occupational Titles (the DOT ), the ALJ 16 improperly determined that plaintiff could perform the jobs of hand 17 packager, packing machine operator, electronics assembler, and cashier. 18 (Joint Stipulation ( Joint Stip. ) at 2-3.) 19 20 21 I. The ALJ Failed To Consider All Medical Records And To Develop The Record Fully. 22 23 Plaintiff contends that the ALJ failed to fully and fairly develop 24 the record. 25 disregarded a form completed by plaintiff s treating physician; failed 26 to consider a second form completed by plaintiff s treating physician; 27 and failed to properly develop the record even though plaintiff was Specifically, plaintiff contends that the ALJ: 28 5 improperly 1 unrepresented at the hearing.3 2 below, the ALJ erred by failing to: 3 form; and (2) further develop the record, particularly given that 4 plaintiff was unrepresented at her hearing. (Joint Stip. at 4-6.) As discussed (1) consider a treating physician s 5 6 It is the responsibility of the ALJ to resolve conflicts in medical 7 testimony and analyze evidence. 8 (9th Cir. 1989). 9 assessing a social security claim, [g]enerally, a treating physician s 10 opinion carries more weight than an examining physician s, and an 11 examining physician s opinion carries more weight than a reviewing 12 physician s. 13 2001); see also 20 C.F.R. § 416.927(d). 14 physicians are entitled to the greatest weight, because the treating 15 physician is hired to cure and has a better opportunity to observe the 16 claimant. Magallanes, 881 F.2d at 751. 17 opinion is not contradicted by another physician, it may be rejected 18 only for clear and convincing reasons. 19 830 (9th Cir. 1995)(as amended). When the treating physician s opinion 20 is contradicted by another doctor, the Commissioner may not reject this 21 opinion without providing specific and legitimate reasons supported by 22 substantial evidence in the record for so doing. Magallanes v. Bowen, 881 F.2d 747, 750 In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. The opinions of treating When a treating physician s Lester v. Chater, 81 F.3d 821, Id. 23 24 3 25 26 27 28 While there was some confusion as to plaintiff s primary physician, the ALJ credits Dr. Sisson as a treating physician for the purpose of his decision. The ALJ states that: In the record the [plaintiff] identified Mr. Martinez, a physicians assistant, as her primary caregiver. Nevertheless, even if Dr. Sisson, who completed [the] forms and is an associate of Mr. Martinez [the physicians assistant who acted as plaintiff s caregiver], were to be considered a treating source, little weight is accorded to his opinions. (A.R. 14.) 6 1 An ALJ has a special duty to fully and fairly develop the record 2 and to assure that claimant s interests are considered. 3 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 4 § 416.912(e), the Administration will seek additional evidence or 5 clarification from your medical source when the report from your medical 6 source contains a conflict or ambiguity that must be resolved, [or] the 7 report does not contain all the necessary information . . . . 8 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (noting that [i]f 9 the ALJ thought he needed to know the basis of [the doctor s] opinions 10 in order to evaluate them, he had a duty to conduct an appropriate 11 inquiry ). 12 record is inadequate to allow for proper evaluation of the evidence, 13 triggers 14 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(quoting 15 Smolen, 80 F.3d at 1288; see also Bayliss v. Barnhart, 427 F.3d 1211, 16 1217 (9th Cir. 2005)( An ALJ is required to recontact a doctor only if 17 the doctor s report is ambiguous or insufficient for the ALJ to make a 18 disability determination. ). An ALJ may discharge his duty to make an 19 inquiry including: 20 physicians, 21 continuing the hearing, or keeping the record open after the hearing to 22 allow supplementation of the record. Brown v. Pursuant to 20 C.F.R. See Ambiguous evidence, or the ALJ s own finding that the the in ALJ s several duty ways, submitting to conduct questions to an appropriate subpoenaing the the claimant s inquiry. claimant s physicians, Tonapetyan, 242 F.3d at 1150. 23 24 This duty extends to the represented as well as the unrepresented 25 claimant. 26 represented by counsel, an ALJ must be especially diligent in exploring 27 for all the relevant facts. 28 extends from the basic premise that social security hearings are not Tonapetyan, 242 F.3d at 1150. When a claimant is not Id. The ALJ s duty to develop the record 7 1 adversarial in nature. Orcutt v. Barnhart, 2005 WL 2387702, at *3 (C.D. 2 Cal. Sept. 27, 2005); see also Sims v. Apfel, 530 U.S. 103, 111, 120 S. 3 Ct. 2080, 2085 (2000)( [i]t is the ALJ s duty to investigate the facts 4 and develop the arguments both for and against granting benefits ). 5 The ALJ s duty to supplement a claimant s record is triggered by 6 ambiguous evidence, the ALJ s own findings that the record is inadequate 7 or the ALJ s reliance on an expert s conclusion that the evidence is 8 ambiguous. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 9 10 However, an ALJ need not accept the opinion of any physician, 11 including a treating physician, if that opinion is brief, conclusory, 12 and inadequately supported by clinical findings. 13 278 F.3d 947, 957 (9th Cir. 2002); see also Batson v. Comm r of Soc. 14 Sec. Admin., 359 F.3d 1190, 1195 & n.3 (9th Cir. 2004)(upholding the 15 ALJ s rejection of an opinion that was conclusionary in the form of a 16 check-list, and lacked supporting clinical findings); Crane v. Shalala, 17 76 18 psychological evaluations because they were contained in check-off forms 19 and lacked any explanation for their bases). F.3d 251, 253 (9th Cir. 1996)(ALJ properly Thomas v. Barnhart, rejected doctors 20 21 In this case, the ALJ gave greatest weight to the opinion of Dr. 22 Girgis, the consultative examiner. (A.R. 14.) In his decision, the ALJ 23 states that [m]inimal weight has been given to the two [April 2007] 24 forms submitted by [plaintiff]. 4 (Id.) The ALJ did not give probative 25 26 27 28 4 In his decision, the ALJ states that [t]he first [form], completed on April 17, 2007, is [in] a check the box format that alleges [plaintiff] is unable to work or attend vocational training due to breath . . . . Likewise the second check-the-box opinion, completed two days later, is a form excusing [plaintiff] from having to 8 1 weight to the April 2007 forms completed by Dr. V. Duane Sisson, M.D., 2 who the ALJ characterized as plaintiff s treating physician, because 3 those forms consisted of check-off reports that did not include any 4 explanation of the bases of [Dr. Sisson s] conclusions. (Id.) The ALJ 5 cites Crane, 76 F.3d at 253, to support his dismissal of the conclusory 6 check-off 7 responsibility for determining the issue of disability is reserved for 8 the Social Security Administration. (Id.) The ALJ relies on 20 C.F.R. 9 § 416.927 to support his dismissal of Dr. Sisson s conclusory opinion 10 reports. (Id.) The ALJ that plaintiff is unable to work.5 also states that the final (Id.) 11 12 As an initial matter, while the ALJ discussed the April 2007 forms 13 in his decision, it appears that the ALJ failed to discuss Dr. Sisson s 14 March 9, 2009 Authorization To Release Medical Information form 15 ( March 2009 form ) (A.R. 170),6 which plaintiff submitted at the April 16 14, 2009 hearing (A.R. 21).7 17 indicates that: In pertinent part, the March 2009 form plaintiff has a medically verifiable condition that 18 19 20 21 22 23 24 25 26 participate in the Welfare to Work program for one year. (A.R. 14.) 5 Notwithstanding defendant s argument that Dr. Sisson s forms addressed an issue reserved to the Commissioner, specifically that Plaintiff could not work (Joint Stip. at 12), the ALJ had a duty to be especially diligent in exploring for all the relevant facts, because plaintiff was unrepresented at the hearing. Tonapetyan, 242 F.3d at 1150. While the ultimate determination of disability is reserved for the Commissioner, this fact does not undermine the ALJ s heightened duty to further develop the record in a case, such as this, in which the plaintiff is unrepresented. 6 Like the April 13, 2007 Authorization To Release Medical Information form, the March 2009 form contains the signature of Physicians Assistant Martinez and a stamp with Dr. Sisson s name, title, and medical license number. (A.R. 170.) 27 7 28 It appears that plaintiff submitted only three cursory forms in support of her disability claim. (A.R. 143, 169, 170.) 9 1 would limit or prevent her from performing certain tasks; 2 condition is chronic with an onset date of 1997; plaintiff is actively 3 seeking 4 limitations that affect her ability to work or participate in education 5 or training; plaintiff s condition does not prevent her from providing 6 care for the child(ren) in the home; and plaintiff s condition does not 7 require someone to be in the home to care for her. 8 an ALJ need not discuss every piece of evidence, an 9 why significant and probative evidence - such as the March 2009 opinion treatment; plaintiff is unable to work; plaintiff s plaintiff (A.R. 170.) has While ALJ must explain 10 of Dr. Sisson, plaintiff s treating doctor - is rejected. 11 failure to discuss Dr. Sisson s March 2009 opinion, let alone to give 12 any reason for rejecting that opinion, constitutes error. The ALJ s 13 14 Further, because plaintiff was not represented by counsel at the 15 hearing, the ALJ had a heightened responsibility to assist plaintiff 16 during the hearing and to develop all facts, both for and against 17 disability, so that the ALJ could make a proper disability determination 18 on a complete record. Tonapetyan, 242 F.3d at 1150. 19 satisfy his duty here. At the hearing, plaintiff presented the ALJ with 20 Dr. Sisson s March 2009 form which indicated, inter alia, that plaintiff 21 is actively seeking treatment - a fact which, if true, would indicate 22 that additional treatment records may be available that reflect the 23 nature and extent of plaintiff s medical care. 24 circumstances, the ALJ should have, and did not, seek to develop the 25 record fully by contacting Dr. Sisson, obtaining plaintiff s treatment 26 records, and seeking the reasoning behind Dr. Sisson s opinion that 27 plaintiff is unable to work. (A.R. 143, 170.) 28 10 The ALJ failed to In view of these The ALJ s failure to 1 develop the record constitutes reversible error.8 2 3 II. The ALJ Improperly Assessed Plaintiff s RFC. 4 5 Plaintiff contends that the ALJ failed to fully and properly 6 consider the opinion of examining physician Dr. Bahaa Girgis, M.D., in 7 determining plaintiff s RFC. 8 below, the ALJ erred in failing either to properly incorporate, or to 9 explain the dismissal of portions of, Dr. Girgis s RFC findings. (Joint Stip. at 16-17.) As discussed 10 11 The opinions of examining physicians may constitute substantial 12 evidence upon which an ALJ may rely in assessing a claimant s RFC if 13 they 14 Tonapetyan, 242 F.3d at 1149 (consultative examiner s opinion on its own 15 constituted substantial evidence, because it rested on independent 16 examination of claimant). 17 Girgis s opinion, and stated that the greatest weight is given to Dr. 18 Girgis conclusions. 19 appears that the ALJ nevertheless implicitly rejected Dr. Girgis s 20 opinion in part, and without giving any reason for doing so, because the 21 ALJ s RFC assessment does not reflect work restrictions consistent with are properly supported by the medical evidence. See, e.g., In his decision, the ALJ summarized Dr. (A.R. 14.) While it is not entirely clear, it 22 23 24 25 26 27 28 8 Defendant s argument that there are no ambiguities that would trigger the ALJ s duty to develop the record is unconvincing. (A.R. 13.) In fact, the ALJ points out the following two ambiguities in his decision: plaintiff alleged that she was hit by a car on October 6, 2007; and the check box that alleges [plaintiff] is unable to work or attend vocational training due to breath. (A.R. 12, 14.) Further, the conclusory forms submitted by plaintiff, particularly in view of the absence of other treating records, strongly suggest that further development of the record would aid the ALJ in making a proper determination of whether plaintiff has an impairment or combination of impairments that preclude(s) her from gainful employment. 11 1 Dr. Girgis s opinion that plaintiff must avoid working on machinery 2 equipment. 9 3 Girgis s opinion -- by his RFC restriction that plaintiff must not work 4 around unprotected machinery (A.R. 11) -- does not meet the specific 5 and legitimate standard contemplated by Ninth Circuit precedent.10 6 Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990)(mere summarization 7 and implicit rejection of physician s opinion does not suffice). 8 plaintiff correctly asserts in the Joint Stipulation, although the ALJ 9 determined in his RFC that plaintiff is precluded from working around 10 unprotected machinery, he completely omitted from the RFC that plaintiff 11 should avoid working on machinery equipment. (A.R. 11, 14, 155.) The ALJ s implicit rejection of Dr. See As Dr. Girgis did not opine 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Defendant contends that the ALJ believed Dr. Girgis s restriction against machinery equipment was based on a concern that [plaintiff] avoid injury due to deafness and linked the concern with avoiding injury to a restriction against unprotected machinery. (Joint Stip. at 18.) However, a reviewing court cannot affirm the denial of benefits based on a reason not stated or a finding not made by the ALJ, and defendant s after-the-fact attempt to supply an acceptable basis for the ALJ s decision is unavailing. See, e.g., Connett, 340 F.3d at 874 (noting that a reviewing court is constrained to review the reasons the ALJ asserts, and an ALJ s decision cannot be affirmed on the basis of evidence he did not discuss); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)(an agency decision cannot be affirmed on the basis of a ground that the agency did not invoke in making its decision); see also Barbato v. Comm r of Soc. Sec. Admin., 923 F.Supp. 1273, 1276 n.2 (C.D. Cal. 1996)(remand is appropriate when a decision does not adequately explain how a decision was reached, [a]nd that is so even if [the Commissioner] can offer proper post hoc explanations for such unexplained conclusions, because the Commissioner s decision must stand or fall with the reasons set forth in the ALJ s decision, as adopted by the Appeals Council )(citation omitted). 10 Moreover, defendant s attempt to uphold the ALJ s unprotected machinery limitation is not persuasive. Defendant argues that whether Dr. Girgis s assessment required a total preclusion against any sort of machinery, or a preclusion against unprotected machinery is, at best, subject to more than one rational interpretation. (Joint Stip. at 18.) However, if Dr. Girgis s limitation was ambiguous, the ALJ should have conducted an appropriate inquiry, especially as the limitation may significantly impact the determination of what jobs, if any, plaintiff can perform. 12 1 that plaintiff be precluded from working around unprotected machinery, 2 he opined that plaintiff should avoid working on machinery equipment. 3 (Joint Stip. at 15-16; emphasis added). 4 precluded from working around any machinery, rather than working around 5 unprotected machinery, may be significant and may impact the vocational 6 base for possible jobs that plaintiff can perform. Therefore, the ALJ s 7 unexplained replacement of Dr. Girgis s limitation that plaintiff not 8 work around machinery equipment with a limitation that plaintiff not 9 work around unprotected machinery was improper. The fact that plaintiff may be 10 11 Accordingly, the ALJ s RFC assessment is inconsistent with the 12 medical evidence that plaintiff has deafness that prohibits her from 13 working around machinery. 14 finding. On remand, the ALJ should reassess his RFC 15 16 III. 17 The ALJ Must Reconsider What Jobs Plaintiff May Be Able to Hold In View Of Plaintiff s Reconsidered RFC. 18 19 Plaintiff contends that, in addition to erring by omitting Dr. 20 Girgis s opinion that plaintiff should avoid working on machinery 21 equipment, the ALJ erred at step five by identifying jobs that require 22 demands in excess of plaintiff s RFC, such as exposure to working in a 23 noisy environment, working on machinery equipment and not working in a 24 clean air environment and not avoiding extreme heat. 25 20.) 26 machine operator are in excess of plaintiff s RFC. 27 29.) 28 determination after reassessing plaintiff s RFC. (Joint Stip. at Defendant acknowledges that the jobs of hand packager and packing (Joint Stip. at 28- As discussed below, the ALJ must reconsider his step five 13 1 At step five of the sequential evaluation process, the Commissioner 2 has the burden to show that a claimant is capable of performing a job 3 that exists in substantial numbers in the national economy. 4 Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). 5 into 6 experience. 7 obtaining the testimony of a vocational expert or referring to the 8 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 9 P, Appendix 2. consideration the Id. at 1100. claimant s RFC, Tackett v. The Commissioner must take age, education, and work The Commissioner may satisfy this burden by Id. at 1101. 10 11 Because the ALJ may have erred in determining plaintiff s RFC and 12 thus may not have posed a proper hypothetical to the vocational expert, 13 his step five determination may be erroneous and should be reexamined 14 upon remand. 15 should not work around any machinery, then he must identify appropriate 16 jobs that do not include working with machinery. 17 Girgis s opinion based upon specific and legitimate reasons for doing 18 so, then the ALJ must properly designate jobs that would accomodate 19 plaintiff s RFC. If the ALJ accepts Dr. Girgis s opinion that plaintiff If he rejects Dr. 20 21 IV. Remand Is Required. 22 23 The decision whether to remand for further proceedings or order an 24 immediate award of benefits is within the district court s discretion. 25 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 26 useful purpose would be served by further administrative proceedings, or 27 where the record has been fully developed, it is appropriate to exercise 28 this discretion to direct an immediate award of benefits. 14 Where no Id. at 1179 1 ( [T]he decision of whether to remand for further proceedings turns upon 2 the likely utility of such proceedings. ). 3 outstanding issues that must be resolved before a determination of 4 disability can be made, and it is not clear from the record that the ALJ 5 would be required to find the claimant disabled if all the evidence were 6 properly evaluated, remand is appropriate. However, where there are Id. at 1179-81. 7 8 9 Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., 10 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 11 further proceedings is appropriate if enhancement of the record would be 12 useful); 13 1989)(remand appropriate to remedy defects in the record). McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 14 15 On remand, the ALJ must correct the above-mentioned deficiencies 16 and errors.11 17 RFC and those jobs that plaintiff can perform, in which case additional 18 testimony from a vocational expert likely will be needed to determine 19 what work, if any, plaintiff can perform. After so doing, the ALJ may need to reassess plaintiff s 20 21 CONCLUSION 22 23 Accordingly, for the reasons stated above, IT IS ORDERED that the 24 decision of the Commissioner is REVERSED, and this case is REMANDED for 25 26 27 28 11 Upon developing the record, the ALJ should address other ambiguities in the record identified in his opinion, including the ambiguity regarding a car accident identified in Exhibit 8E (A.R. 115) and the ambiguity in Exhibit 1F in which the ALJ believed Dr. Sisson wrote breath, but which plaintiff contends is birth (A.R. 14). 15 1 further proceedings consistent with this Memorandum Opinion and Order. 2 3 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 4 copies of this Memorandum Opinion and Order and the Judgment on counsel 5 for plaintiff and for defendant. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 28, 2011 10 11 12 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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