Mark Harris v. Michael J Astrue, No. 5:2010cv01368 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 MARK HARRIS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ________________________________) No. ED CV 10-1368-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on September 17, 2010, seeking review of the Commissioner s 22 denial of his application for Supplemental Security Income payments. The parties filed Consents 23 to proceed before the undersigned Magistrate Judge on September 29, 2010, and October 1, 24 2010. The parties filed a Joint Stipulation on March 28, 2011, that addresses their positions 25 concerning the disputed issues in the case. The Court has taken the Joint Stipulation under 26 submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on July 17, 1960. [Administrative Record ( AR ) at 16, 43.] He obtained 4 a GED; went to trade schools for welding, construction, and electrician training; and has past 5 relevant work experience as an electrician apprentice, truck driver, and welder. [AR at 14, 47, 49, 6 58-59, 63-64, 66-67.] 7 On June 4, 2008, plaintiff protectively filed his application for Supplemental Security Income 8 payments, alleging that he has been unable to work since April 13, 2005, due to, among other 9 things, back injury, deteriorating spinal cord, left hand numbness, and high blood pressure. [AR 10 at 11, 16, 18, 43-46, 57-65.] After plaintiff s application was denied initially and on reconsideration, 11 he requested a hearing before an Administrative Law Judge ( ALJ ). [AR at 18-23, 26-31.] A 12 hearing was held on March 8, 2010, at which time plaintiff s counsel appeared, but plaintiff did not. 13 The ALJ found plaintiff to be an unnecessary witness and decided the matter on the record 14 without receiving any testimony.1 [See AR at 11, 122-25.] On April 5, 2010, the ALJ determined 15 that plaintiff was not disabled. [AR at 8-15.] When the Appeals Council denied plaintiff s request 16 for review of the hearing decision on August 25, 2010, the ALJ s decision became the final 17 decision of the Commissioner. [AR at 3-6.] This action followed. 18 19 III. 20 STANDARD OF REVIEW 21 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 22 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 23 24 25 26 27 28 1 The ALJ told plaintiff s counsel that he would reset the hearing date if plaintiff established good cause for missing the hearing before the ALJ issued a decision. [See AR at 124.] In requesting review of the ALJ s April 5, 2010, hearing decision, plaintiff stated that he never received notice about his hearing until he received a call from [his] attorney on the same day of the hearing telling [him] that [he] had the appointment, but that he had no transportation. [AR at 6.] It does not appear that plaintiff timely asked that the hearing date be reset. 2 1 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 2 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 3 In this context, the term substantial evidence means more than a mere scintilla but less 4 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 5 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 6 1257. When determining whether substantial evidence exists to support the Commissioner s 7 decision, the Court examines the administrative record as a whole, considering adverse as well 8 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 9 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 10 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 11 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 12 13 IV. 14 THE EVALUATION OF DISABILITY 15 Persons are disabled for purposes of receiving Social Security benefits if they are unable 16 to engage in any substantial gainful activity owing to a physical or mental impairment that is 17 expected to result in death or which has lasted or is expected to last for a continuous period of at 18 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 19 20 A. THE FIVE-STEP EVALUATION PROCESS 21 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 22 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 23 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 24 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 25 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 26 substantial gainful activity, the second step requires the Commissioner to determine whether the 27 claimant has a severe impairment or combination of impairments significantly limiting his ability 28 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 3 1 If the claimant has a severe impairment or combination of impairments, the third step requires 2 the Commissioner to determine whether the impairment or combination of impairments meets or 3 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 4 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 5 If the claimant s impairment or combination of impairments does not meet or equal an impairment 6 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 7 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 8 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 9 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 10 case of disability is established. The Commissioner then bears the burden of establishing that the 11 claimant is not disabled, because he can perform other substantial gainful work available in the 12 national economy. The determination of this issue comprises the fifth and final step in the 13 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 14 at 1257. 15 16 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 17 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 18 gainful activity since June 4, 2008, the application date. [AR at 13.] At step two, the ALJ 19 concluded that plaintiff has severe impairments of the neurological system and musculoskeletal 20 system. [Id.] At step three, the ALJ concluded that plaintiff s impairments do not meet or equal 21 any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff retained the residual 22 functional capacity ( RFC )2 to perform light work,3 except he can occasionally climb, balance, 23 24 25 26 27 28 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 Light work is defined as work that involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be (continued...) 4 1 stoop, kneel, crouch and crawl ... [and] should avoid working at heights or around dangerous 2 machinery. [Id.] At step four, the ALJ concluded that plaintiff is unable to perform his past 3 relevant work. [AR at 14.] At step five, the ALJ found, relying on the Medical-Vocational 4 Guidelines (i.e., the grids ) and the state agency s opinion that plaintiff could perform unskilled 5 sedentary jobs, that there are jobs existing in significant numbers in the national economy that 6 plaintiff can perform. [AR at 14-15; see AR at 40-42.] Accordingly, the ALJ found plaintiff not 7 disabled. [AR at 15.] 8 9 V. 10 THE ALJ S DECISION 11 Plaintiff contends that the ALJ failed to properly: (1) consider the treating physician s 12 opinion; (2) consider the state agency physician s opinion; (3) determine plaintiff s RFC; (4) 13 consider plaintiff s credibility; and (5) determine whether plaintiff could perform other work. [Joint 14 Stipulation ( JS ) at 2-3.] As set forth below, the Court agrees with plaintiff, in part, and remands 15 the matter for further proceedings. 16 17 A. THE MEDICAL OPINION EVIDENCE AND RFC DETERMINATION 18 Plaintiff contends that the ALJ failed to properly consider the medical opinion evidence and 19 erred in reaching the RFC determination. Specifically, plaintiff argues that the ALJ improperly 20 ignored a July 28, 2009, Medical Report (which plaintiff argues was likely completed by his treating 21 physician, Dr. Maithri Weerasinghe) and a January 26, 2009, Physical Residual Functional 22 Capacity Assessment ( PRFCA ) completed by a nonexamining physician whose signature is 23 illegible. Plaintiff further contends that although the ALJ stated in the decision that he credited the 24 October 4, 2008, opinion of examining physician Dr. Bryan H. To, the ALJ erred by not fully 25 incorporating Dr. To s findings concerning plaintiff s functional limitations in the RFC determination 26 27 28 3 (...continued) considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities. 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 and by not providing any reasons for partially rejecting Dr. To s findings. [See JS at 3-5, 8-9, 12- 2 14.] 3 In evaluating medical opinions, the case law and regulations distinguish among the opinions 4 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 5 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 6 nor treat the claimant (nonexamining physicians). See 20 C.F.R. §§ 404.1502, 404.1527, 7 416.902, 416.927; see also Lester, 81 F.3d at 830. Generally, the opinions of treating physicians 8 are given greater weight than those of other physicians, because treating physicians are employed 9 to cure and therefore have a greater opportunity to know and observe the claimant. Orn v. Astrue, 10 495 F.3d 625, 631 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). Despite 11 the presumption of special weight afforded to treating physicians opinions, an ALJ is not bound 12 to accept the opinion of a treating physician. However, the ALJ may only give less weight to a 13 treating physician s opinion that conflicts with the medical evidence if the ALJ provides explicit and 14 legitimate reasons for discounting the opinion. See Lester, 81 F.3d at 830-31 (the opinion of a 15 treating doctor, even if contradicted by another doctor, can only be rejected for specific and 16 legitimate reasons that are supported by substantial evidence in the record); see also Orn, 495 17 F.3d at 632-33 ( Even when contradicted by an opinion of an examining physician that constitutes 18 substantial evidence, the treating physician s opinion is still entitled to deference. ) (citations 19 omitted); Social Security Ruling4 96-2p (a finding that a treating physician s opinion is not entitled 20 to controlling weight does not mean that the opinion is rejected). Likewise, the Commissioner 21 must provide clear and convincing reasons for rejecting the uncontradicted opinion of an 22 examining physician. Lester, 81 F.3d at 830 (quoting Pitzer v. Sullivan, 908 F.2d 502, 506 (9th 23 Cir. 1990)). Even where an examining physician s opinion is contradicted by another doctor, the 24 25 26 27 28 4 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 6 1 ALJ must still provide specific and legitimate reasons supported by substantial evidence to 2 properly reject it. Id. at 830-31 (citing Andrews 53 F.3d at 1043). 3 The regulations provide that although ALJs are not bound by any findings made by 4 [nonexamining] State agency medical or psychological consultants, or other program physicians 5 or psychologists, ALJs must still consider [their] findings and other opinions ... as opinion 6 evidence, except for the ultimate determination about whether [a claimant is] disabled, because 7 such specialists are regarded as highly qualified ... experts in Social Security disability 8 evaluation. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). The regulations further provide that 9 [u]nless a treating source s opinion is given controlling weight, the [ALJ] must explain in the 10 decision the weight given to the opinions of a State agency medical or psychological consultant 11 or other program physician, psychologist, or other medical specialist. 12 404.1527(f)(2)(ii), 416.927(f)(2)(ii). See also SSR 96-6p ( Findings ... made by State agency 13 medical and psychological consultants ... regarding the nature and severity of an individual s 14 impairment(s) must be treated as expert opinion evidence of nonexamining sources, and ALJs 15 may not ignore these opinions and must explain the weight given to these opinions in their 16 decisions. ). 20 C.F.R. §§ 17 On October 4, 2008, Dr. To completed a summary report of an Independent Internal 18 Medicine Evaluation, in which he noted plaintiff s reported history of, among other things, low back 19 pain that radiates down his right leg, hypertension, TIA (transient ischemic attack), and CVA 20 (cerebrovascular accident) with residual left-sided weakness, as well as a reported diagnosis of 21 spinal cord disease. [See AR at 99-104.] Dr. To stated that plaintiff s physical and neurological 22 examinations revealed, among other things, that plaintiff walked with a limp secondary to right leg 23 weakness and numbness, had range of motion pain and weakness in his right leg, and had range 24 of motion pain in his back. [AR at 101-02.] Dr. To opined, [b]ased on the objective findings of 25 [his] examination, that plaintiff should be limited to pushing, pulling, lifting, and carrying 20 pounds 26 occasionally and 10 pounds frequently; two hours of standing and walking in an eight-hour 27 workday; and only occasional walking on uneven terrain, ladder climbing, working with heights, 28 bending, kneeling, stooping, crawling, and crouching, and should be restricted from working with 7 1 heavy and moving machinery. Dr. To also opined that plaintiff [m]ay need a cane for prolonged 2 ambulation. [AR at 103.] 3 In a PRFCA dated November 5, 2008, nonexamining physician Dr. E. Johnson offered an 4 opinion concerning plaintiff s functional limitations that was similar to that of Dr. To, except that Dr. 5 Johnson found plaintiff able to stand and/or walk for about 6 hours in an 8-hour workday and did 6 not include the limitations that plaintiff could only occasionally walk on uneven terrain and might 7 need to use a cane for prolonged ambulation. [See AR at 107-12.] In a second PRFCA dated 8 January 26, 2009, another nonexamining physician (whose signature is illegible) opined that 9 plaintiff has most of the same limitations as those assessed by Dr. To -- including that plaintiff 10 needs a cane for long ambulation and can stand and/or walk for two hours in an eight-hour 11 workday.5 12 standing/walking discrepancy between Dr. To s and Dr. Johnson s opinions, noting that Dr. 13 Johnson provided no explanation for not adopting Dr. To s standing/walking restriction. [See AR 14 at 113.] [See AR at 114-19.] The second nonexamining physician highlighted the 15 In a Medical Report dated July 28, 2009, that was completed by someone from Dr. Mike s 16 Walk In Clinic (which plaintiff listed as the location of his treating physician, Dr. Weerasinghe [see 17 AR at 60]), plaintiff was diagnosed with degenerative disc disease and L4-L5 spinal stenosis, for 18 which plaintiff was referred to neurosurgery, and an MRI of plaintiff s lumbosacral spine had been 19 ordered. 20 considerably following surgery, probably. [AR at 121.] Further, plaintiff was assessed as being 21 incapacitated from July 2009 to 2010 and unable to work, and it was noted that he had limitations 22 with lifting, stooping, and pulling. [Id.] The author of the Medical Report noted that plaintiff s symptoms may improve 23 In the decision, the ALJ discussed some of the findings of Dr. To and Dr. Johnson 24 (including Dr. To s opinion that plaintiff needs to use a cane for prolonged ambulation) and stated 25 that he agree[d] with the [RFC] as assessed by the State Agency medical consultants and the 26 27 5 28 The January 26, 2009, PRFCA did not include Dr. To s opinion that plaintiff could only occasionally walk on uneven terrain. [AR at 114-19.] 8 1 consultative examiner. [See AR at 13-14, citing AR at 99-104 (Dr. To s October 4, 2008, 2 Evaluation), AR at 107-12 (Dr. Johnson s November 5, 2008, PRFCA).] However, the ALJ did not 3 include in his RFC determination Dr. To s finding that plaintiff is limited to only two hours of 4 standing and walking during an eight-hour workday, may need to use a cane for prolonged 5 ambulation, and can only occasionally walk on uneven terrain, nor did the ALJ explain why these 6 aspects of Dr. To s opinion were omitted from the RFC determination. [See AR at 13-14.] The 7 ALJ also failed to even mention the January 26, 2009, PRFCA or the July 28, 2009, Medical 8 Report, let alone explain the weight that he afforded those two medical opinions. [Id.] 9 The ALJ s consideration of the medical opinion evidence was inadequate. Even though the 10 ALJ discussed some of Dr. To s findings and asserted that he relied on his opinion in reaching the 11 RFC determination, because the ALJ ignored and excluded from the RFC determination some of 12 Dr. To s specific findings (i.e., that plaintiff can only stand and walk for two hours, needs a cane 13 for prolonged ambulation, and can only occasionally walk on uneven terrain), it appears that the 14 ALJ implicitly rejected those portions of Dr. To s opinion without providing any reason for doing 15 so. Likewise, as the medical opinions expressed in the January 26, 2009, PRFCA and the July 16 28, 2009, Medical Report are inconsistent with the ALJ s RFC determination, and the ALJ did not 17 acknowledge those opinions or the weight he afforded them in the decision, it appears that the ALJ 18 implicitly rejected those opinions as well. 19 administrative decision is impossible without an adequate explanation of that decision by the 20 administrator. DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) (finding that an ALJ s 21 failure to explain why he disregarded medical evidence prevented meaningful judicial review ). 22 The ALJ s failure to expressly explain why he apparently rejected the findings represented in Dr. 23 To s Evaluation, the January 26, 2009, PRFCA, and the July 28, 2009, Medical Report6 as This constitutes error. Judicial review of an 24 6 25 26 27 28 Although defendant is correct that the ALJ is not bound to adopt the opinion expressed in the July 28, 2009, Medical Report that plaintiff is unable to work [see JS at 6; AR at 121], the ALJ was still required (whether the Medical Report is characterized as a treating or examining opinion) to explain the weight he afforded the Medical Report and provide specific and legitimate reasons for why he apparently rejected the opinions expressed therein. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (although [t]he [ALJ] is not bound by the uncontroverted opinions of the (continued...) 9 1 discussed above prevents meaningful judicial review. Since it is apparent that the ALJ cannot 2 reject evidence for no reason or the wrong reason, an explanation from the ALJ of the reason why 3 probative evidence has been rejected is required so that ... [the] [C]ourt can determine whether 4 the reasons for rejection were improper. Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981) 5 (internal citation omitted). 6 Furthermore, in determining plaintiff s disability status, the ALJ had the responsibility to 7 determine plaintiff s RFC after considering all of the relevant medical and other evidence in the 8 record, including all medical opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c), 9 416.945(a)(3), 416.946(c); see SSR 96-8p, 1996 WL 374184, at *5, *7. Since the ALJ failed to 10 provide proper reasons for why he apparently rejected some of the medical opinion evidence 11 concerning plaintiff s physical limitations, the ALJ s RFC determination is likewise flawed. See 12 SSR 96-8p, at *7 ( The RFC assessment must always consider and address medical source 13 opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator 14 must explain why the opinion was not adopted. ); see also 20 C.F.R. §§ 404.1527(f)(2), 15 416.927(f)(2). 16 17 Accordingly, remand is warranted for the ALJ to properly consider the medical opinion evidence and reassess plaintiff s RFC. 18 19 B. PLAINTIFF S CREDIBILITY 20 21 Plaintiff argues that the ALJ improperly rejected plaintiff s credibility and subjective symptoms. [JS at 14-17.] 22 In various disability forms, plaintiff stated that he suffers from back, leg, and ankle pain, 23 which at times disrupts his ability to sleep. [AR at 75, 90, 94.] Plaintiff further reported that he 24 25 26 27 28 6 (...continued) claimant s physicians on the ultimate issue of disability, ... he cannot reject them without presenting [specific and legitimate] reasons for doing so. ) (quotations and citation omitted); Lester, 81 F.3d at 830-31 (the ALJ must provide specific and legitimate reasons supported by substantial evidence in the record to reject the contradicted opinion of a treating or examining physician). 10 1 cannot stand for a long time or sit to[o] long, walks with a cane or brace, often needs someone 2 to be with him when he goes out because he falls down a lot, worries that even a small rock or 3 stick might cause him to fall, cannot lift over five pounds, and has difficulty squatting or kneeling. 4 [AR at 76, 78-81, 95.] Plaintiff specified to Dr. To during the October 4, 2008, Evaluation that 5 [s]itting three minutes, standing five minutes, and walking half a block ... aggravate[s] his back 6 pain. [AR at 99.] 7 When the record contains medical evidence of underlying impairments that are reasonably 8 likely to cause the alleged symptoms, medical findings are not required to support their alleged 9 severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also Light v. Soc. Sec. 10 Admin., 119 F.3d 789, 792 (9th Cir. 1997) ( [B]ecause a claimant need not present clinical or 11 diagnostic evidence to support the severity of his pain ... a finding that the claimant lacks credibility 12 cannot be premised wholly on a lack of medical support for the severity of his pain. ); Byrnes v. 13 Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying Bunnell to subjective physical complaints). 14 Under such circumstances, an ALJ can reject a plaintiff s allegations only upon (1) finding 15 evidence of malingering, or (2) expressing clear and convincing reasons for doing so. Benton v. 16 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The following factors may be considered in 17 weighing a plaintiff s credibility: (1) his reputation for truthfulness; (2) inconsistencies either in the 18 plaintiff s testimony or between the plaintiff s testimony and his conduct; (3) his daily activities; (4) 19 his work record; and (5) testimony from physicians and third parties concerning the nature, 20 severity, and effect of the symptoms of which he complains. Thomas v. Barnhart, 278 F.3d 947, 21 958-59 (9th Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). General findings are 22 insufficient; rather, the ALJ must identify what [statements are] not credible and what evidence 23 undermines the claimant s complaints. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) 24 (quoting Lester, 81 F.3d at 834). Here, because the record contains no evidence of malingering by plaintiff,7 the ALJ was 25 26 27 7 28 The ALJ made no finding that plaintiff was malingering, nor does the evidence suggest plaintiff was doing so. 11 1 required to justify his credibility determination with clear and convincing reasons. See Benton, 331 2 F.3d at 1040. In the decision, despite finding that plaintiff s medically determinable impairments 3 could reasonably be expected to cause the alleged symptoms, the ALJ found plaintiff s 4 statements concerning the intensity, persistence and limiting effects of these symptoms [to be] 5 not credible to the extent they are inconsistent with the above [RFC] assessment. [AR at 14.] 6 However, the ALJ provided no specific reasons for finding plaintiff s subjective symptoms partially 7 incredible and failed to cite any specific evidence that undermines the extent of plaintiff s 8 complaints. [See id.] As the ALJ s general conclusion that the extent of plaintiff s subjective 9 symptoms is not credible, by itself, is an insufficient basis for rejecting plaintiff s credibility (Berry, 10 622 F.3d at 1234) -- and the ALJ may have found plaintiff disabled (i.e., unable to perform even 11 sedentary work) if he had credited plaintiff s subjective symptoms -- the Court concludes that 12 remand is necessary so that the ALJ can properly consider plaintiff s credibility and subjective 13 symptoms.8 14 15 VI. 16 REMAND FOR FURTHER PROCEEDINGS 17 As a general rule, remand is warranted where additional administrative proceedings could 18 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 19 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 20 In this case, remand is appropriate in order for the ALJ to reconsider the medical opinions 21 represented in Dr. To s Evaluation, the January 26, 2009, PRFCA, and the July 28, 2009, Medical 22 Report; plaintiff s RFC; and plaintiff s credibility. The ALJ is instructed to take whatever further 23 action is deemed appropriate and consistent with this decision. 24 / 25 / 26 27 8 28 As remand is warranted for the reasons discussed herein, the Court exercises its discretion not to address plaintiff s remaining contention of error. 12 1 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 2 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 3 for further proceedings consistent with this Memorandum Opinion. 4 5 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 6 7 DATED: May 16, 2011 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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