Nicholas Telles v. Michael J. Astrue, No. 5:2011cv00337 - Document 15 (C.D. Cal. 2012)
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 NICHOLAS TELLES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-00337-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on March 8, 2011, seeking review of the 19 denial of plaintiff s application for a period of disability, disability 20 insurance benefits ( DIB ), and supplemental security income ( SSI ). 21 On April 5, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), 22 to proceed before the undersigned United States Magistrate Judge. 23 parties filed a Joint Stipulation on November 7, 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 the Commissioner requests that 27 his 28 administrative proceedings. decision be affirmed or, alternatively, remanded for The further 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On October 25, 2007, plaintiff filed an application for a period of 4 disability, DIB, and SSI. 5 Plaintiff, who was born on October 15, 1982 (A.R. 15),1 claims to have 6 been disabled since November 1, 2005 (A.R. 8), due to schizophrenia, 7 schizoaffective 8 attacks. disorder, (Administrative depression, Record paranoia, ( A.R. ) anxiety, and 8.) panic (A.R. 22-24, 52, 58). 9 10 After the Commissioner denied plaintiff s claim initially and upon 11 reconsideration (A.R. 8, 52-56, 58-63), plaintiff requested a hearing 12 (A.R. 8, 64). 13 attorney, appeared and testified at a hearing before Administrative Law 14 Judge Joseph D. Schloss (the ALJ ). 15 David Glassmire and vocational expert David A. Rinehart also testified. 16 (Id.) 17 16), and the Appeals Council subsequently denied plaintiff s request for 18 review of the ALJ s decision (A.R. 1-3). 19 in this action. On October 14, 2009, plaintiff, who was represented by an (A.R. 8, 17-47.) Medical expert On December 10, 2009, the ALJ denied plaintiff s claim (A.R. 8- That decision is now at issue 20 21 SUMMARY OF ADMINISTRATIVE DECISION 22 The ALJ found that plaintiff met the insured status requirements of 23 24 the Social Security Act through March 31, 2008. (A.R. 10.) The ALJ 25 also substantial gainful found that plaintiff has not engaged in 26 27 28 1 On the alleged disability onset date, plaintiff was 23 years old, which is defined as a younger individual. (Id.; citing 20 C.F.R. §§ 404.1563, 416.963.) 2 1 activity since November 2 disability. 3 impairment of schizophrenia/depression. (Id.) In so finding, the ALJ 4 also determined that plaintiff s substance abuse disorder is not severe 5 and has been in remission since 2007. 6 plaintiff does not have an impairment or combination of impairments that 7 meets or medically equals one of the listed impairments in 20 C.F.R. 8 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 9 404.1526, 416.920(d), 416.925, 416.926). (Id.) 1, 2005, the alleged onset date of his The ALJ determined that plaintiff has the severe (Id.) The ALJ found that (A.R. 11.) 10 11 After reviewing the record, the ALJ determined that plaintiff has 12 the residual functional capacity ( RFC ) to perform medium work as 13 defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c). 14 noted 15 environment and involve simple repetitive tasks requiring little contact 16 with supervisors, coworkers or a team, [and] in an environment where 17 [plaintiff] is not responsible for the safety of others. that [t]his [work] should be performed (A.R. 13.) in a low The ALJ stress (Id.) 18 19 The ALJ concluded that plaintiff is unable to perform his past 20 relevant work.2 21 after having considered plaintiff s age, education,3 work experience, and 22 the testimony of the vocational expert, the ALJ found that jobs exist in 23 the national economy that plaintiff could perform, including floor (A.R. 14.) However, based on his RFC assessment and 24 25 2 26 In his decision, the ALJ noted that plaintiff has past relevant work as an electrical wiring assembler (recreational vehicle) and auto body customizer. (A.R. 14.) 27 3 28 The ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 15.) 3 1 polisher, stores laborer, and kitchen helper. (A.R. 15.) 2 Accordingly, the ALJ concluded that plaintiff has not been under a 3 disability, as defined in the Social Security Act, from November 1, 4 2005, through the date of the ALJ s decision. (A.R. 16.) 5 6 STANDARD OF REVIEW 7 8 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 9 decision to determine whether it is free from legal error and supported Orn v. Astrue, 495 10 by substantial evidence in the record as a whole. 11 F.3d 625, 630 (9th Cir. 2007). 12 evidence as a reasonable mind might accept as adequate to support a 13 conclusion. 14 a mere scintilla but not necessarily a preponderance. 15 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 16 record can constitute substantial evidence, only those reasonably drawn 17 from the record will suffice. 18 1066 (9th Cir. 2006)(citation omitted). Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 19 20 Although this Court cannot substitute its discretion for that of 21 the Commissioner, the Court nonetheless must review the record as a 22 whole, weighing both the evidence that supports and the evidence that 23 detracts from the [Commissioner s] conclusion. 24 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 25 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 26 responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities. 28 1035, 1039 (9th Cir. 1995). 4 Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 1 The Court will uphold the Commissioner s decision when the evidence 2 is susceptible to more than one rational interpretation. Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 review only the reasons stated by the ALJ in his decision and may not 5 affirm the ALJ on a ground upon which he did not rely. 6 at 630; see also Connett, 340 F.3d at 874. 7 the Commissioner s decision if it is based on harmless error, which 8 exists only when it is clear from the record that an ALJ s error was 9 inconsequential to the ultimate nondisability determination. Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 11 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 12 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 13 14 DISCUSSION 15 16 Plaintiff claims that the ALJ did not: (1) consider properly the 17 opinion 18 (2) consider properly the opinion of psychiatrist David Aryanpur, M.D.;4 19 (3) consider properly the opinion of consultative psychologist Kara 20 Cross, Ph.D.; (4) assess properly plaintiff s RFC; and (5) pose a 21 complete hypothetical to the vocational expert. 22 ( Joint Stip. ) at 2-10, 18-23, 25-29, 31-36.) 23 /// 24 /// 25 /// of his treating psychiatrist Maged M. Estafan, M.D.; (Joint Stipulation 26 27 28 4 In discussing the ALJ s alleged error in considering properly the opinion of Dr. Estafan, plaintiff also claimed that the ALJ did not consider properly the opinion of Dr. Aryanpur. (A.R. 7-8.) 5 1 I. The ALJ Did Not Consider Properly The Medical Opinions Of 2 Drs. Estafan And Aryanpur and Should Revisit The Opinion 3 Of Dr. Cross On Remand. 4 5 It is the responsibility of the ALJ to analyze evidence and resolve 6 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 7 (9th Cir. 1989). 8 assessing a social security claim, [g]enerally, a treating physician s 9 opinion carries more weight than an examining physician s, and an 10 examining physician s opinion carries more weight than a reviewing 11 physician s. 12 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 13 14 The opinions of treating physicians are entitled to the greatest 15 weight, because the treating physician is hired to cure and has a better 16 opportunity to observe the claimant. 17 a treating physician s opinion is not contradicted by another physician, 18 it may be rejected only for clear and convincing reasons. 19 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 20 doctor, a treating physician s opinion may only be rejected if the ALJ 21 provides specific and legitimate reasons supported by substantial 22 evidence in the record. Magallanes, 881 F.2d at 751. When Lester v. When contradicted by another Id. 23 24 A. Dr. Estafan 25 26 Plaintiff claims that the ALJ failed to consider properly, and give 27 specific and legitimate reasons for rejecting, the opinion of Maged M. 28 Estafan, M.D., plaintiff s treating psychiatrist. 6 1 In his decision, the ALJ specifically referenced Dr. Estafan s 2 January 23, 2009 Mental Work Capacity Evaluation and his June 9, 2009 3 Narrative Report. 4 set forth in his January 23, 2009 Mental Work Capacity Evaluation, that 5 plaintiff could not sustain work activity without frequent absences, 6 because it [wa]s not supported by any objective evidence. 7 In so finding, the ALJ 8 moderate in the majority of areas which does not equate with the degree 9 of limitation set forth by Dr. Estafan. (A.R. 12.) The ALJ rejected Dr. Estafan s opinion, (A.R. 14.) noted that Dr. Estafan rated [plaintiff] as (Id.) 10 11 In addition, the ALJ rejected Dr. Estafan s opinion that plaintiff 12 was unable to adapt to new or stressful situations and could not 13 sustain . . . concentration or repetitive tasks for an extended period, 14 because Dr. Estafan s treatment notes were brief [and] conclusory and 15 his 16 clinical record at [Riverside County Department of Health] . . . . 17 (A.R. 12.) findings [we]re inconsistent with [plaintiff] s longitudinal The ALJ noted that: 18 19 Clinical notes of July 14, 2008, from the Riverside County 20 Department of Health state that [plaintiff] had been absent 21 from group therapy for two weeks due to his helping his 22 parents paint and repair their house . . . . 23 [plaintiff] was reported to travel to Las Vegas for a vacation 24 during June 2008 . . . . Previously, 25 26 Clinical notes of May 8, 2009, from the Riverside County 27 Department state that [plaintiff] was sleeping well and doing 28 fine. [Plaintiff] was reported to enjoy working with his 7 1 brother detailing cars. His mood, affect, 2 attention/concentration, and speech were all described as 3 appropriate. 4 sleep problems, appetite problems or drug/alcohol use . . . . 5 Previously, on January 23, 2009, a progress note reported that 6 claimant was doing well with his prescribed medication and 7 experiencing no side effects . . . . 8 [plaintiff] s levels of paranoia and anxiety were termed mild. 9 [Plaintiff] was reported to have had one hospitalization . . . [Plaintiff] had no hallucinations, delusions, As of September 9, 2008, [in] 2005 . . . . 10 11 12 (Id.; internal citations omitted.) 13 14 The ALJ s reason for rejecting Dr. Estafan s opinion regarding 15 plaintiff s inability to sustain work activity without frequent absences 16 is neither specific nor legitimate. As an initial matter, Dr. Estafan s 17 finding is supported by objective evidence -- to wit, his medical 18 findings 19 examinations of plaintiff throughout his medical treatment.5 20 while it is true, as the ALJ contends, that Dr. Estafan rated plaintiff 21 as 22 activities, and having diagnoses moderate Dr. as well as limitations Estafan also in found his the multiple observations majority plaintiff to of and Further, work-related have marked 23 5 24 25 26 27 28 As noted in Huynh v. Astrue, 2010 U.S. Dist. LEXIS 99002, at *20, 2010 WL 3749270, at *7 (C.D. Cal. Sept. 20, 2010)(citations omitted), [p]sychiatric impairments are not as amenable to substantiation by objective laboratory testing as are physical impairments. The diagnostic techniques necessarily will be less tangible. Mental disorders cannot be ascertained and verified like physical ailments. Accordingly, in the case of mental illness, clinical and laboratory data may consist of the diagnoses and observations of professional psychiatrists and psychologists. Id. (citation omitted). 8 1 limitations, inter alia, in his ability to perform activities within a 2 schedule, maintain regular attendance, and be punctual within customary 3 tolerances as well as in his ability to sustain an ordinary routine 4 without special supervision. 5 Work Capacity Evaluation, marked was defined as: Serious limitations 6 in this area. 7 but not precluded. 8 marked limitations -- findings that are supportive of Dr. Estafan s 9 opinion 10 (A.R. 398.) For purposes of the Mental The ability to function in this area is severely limited regarding (Id.) Accordingly, in view of these findings of plaintiff s absences -- the ALJ s reasoning is unpersuasive. 11 12 The ALJ also rejects Dr. Estafan s opinion that plaintiff is unable 13 to adapt to new or stressful situations, sustain concentration, and 14 conduct repetitive tasks for an extended period, because Dr. Estafan s 15 treatment notes are brief [and] conclusory and inconsistent with 16 [plaintiff] s longitudinal clinical record at the Riverside County 17 Department of Health. 18 physician s opinion if it is conclusory, brief, and unsupported by the 19 record as a whole or by objective medical findings. 20 SSA, 359 F.3d 1190, 1195 (9th Cir. 2004). 21 January 23, 2009 Mental Work Capacity Evaluation is a checkbox form and 22 his June 9, 2009 Narrative Report is a circle [a]ll criteria that apply 23 to this case form, the ALJ properly found these evaluation forms to be 24 brief and conclusory. 25 findings contained therein are not inconsistent with the longitudinal 26 records at the Riverside County Department of Health. 27 properly cited periods when Dr. Estafan and/or social workers at the 28 Riverside County Department of Health found plaintiff to be stable and (A.R. 12.) An ALJ may discredit a treating Batson v. Comm r of Inasmuch as Dr. Estafan s However, contrary to the ALJ s conclusion, the 9 While the ALJ 1 doing fine, the ALJ appears to have ignored or failed to summarize 2 properly 3 experiencing significant symptoms and/or limitations as a result of his 4 impairment. other treatment notes which reflect that plaintiff was 5 6 For example, the ALJ failed to mention Dr. Estafan s January 2, 7 2007 treatment note in which he found plaintiff to have: an emotional 8 state that was euthymic, depressed, and restricted; paranoid delusions; 9 and visual and auditory perceptions/hallucinations. (A.R. 290.) In 10 addition, the ALJ made no reference Dr. Estafan s November 6, 2007 11 treatment note in which he found plaintiff to have bizarre thought 12 processes, paranoid delusions, and visual perceptions/hallucinations. 13 (A.R. 283.) 14 not cite Dr. Estafan s April 9, 2008 Narrative Report -- a report that 15 largely mirrors his June 9, 2009 Narrative Report. 16 Narrative Report, Dr. Estafan found plaintiff to have: paranoid thought 17 that 18 hallucinations/delusions; 19 depression, anxiety, isolation, inappropriate affect, avolition, and 20 social withdrawal. 21 plaintiff did not show an ability to: 22 concentration ; sustain repetitive tasks for an extended period ; or 23 adapt to new or stressful situations. 24 that plaintiff had an anxious attitude and needed assistance with 25 finances, and he characterized plaintiff s prognosis as chronic. 26 (Id.) 27 levels of anxiety and paranoia were mild in his September 9, 2008 28 treatment note, the ALJ did not mention the fact that Dr. Estafan found Additionally, as properly noted by plaintiff, the ALJ did influences his actions impaired (A.R. 331.) and/or judgment; In the April 9, 2008 behaviors; evidence of visual insomnia, Further, Dr. Estafan found that maintain a sustained level of (Id.) Dr. Estafan also found Lastly, while the ALJ noted that Dr. Estafan found plaintiff s 10 1 that plaintiff was still experiencing auditory and visual 2 perceptions/hallucinations (A.R. 388) and that he was assessed with a 3 GAF score of 50-55 (A.R. 385).6 4 5 Accordingly, the evidence, when fairly viewed, appears to show that 6 plaintiff s condition is recurrent in nature. While at first blush Dr. 7 Estafan s findings seem to be inconsistent with some of the treatment 8 records, that inconsistency appears to be a result of the chronic and 9 recurrent nature of plaintiff s condition. As such, the ALJ s reasoning 10 cannot constitute a specific and legitimate reason for rejecting Dr. 11 Estafan s opinion. 12 13 2. Dr. Aryanpur 14 15 16 Plaintiff also claims that the ALJ did not consider properly the opinion of examining psychiatrist David Aryanpur, M.D. 17 18 The ALJ rejected Dr. Aryanpur s opinion that plaintiff suffered a 19 moderate to serious level of mental functional impairment, because Dr. 20 Aryanpur s opinion was not supported by his report of objective 21 findings. (A.R. 13.) Specifically, the ALJ noted Dr. Aryanpur s 22 23 24 25 26 27 28 6 The GAF scale [c]onsider[s] psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness. Diagnostic and Statistical Manual of Mental Disorders, DSMIV-TR, 34 (rev. 4th ed. 2000). A rating of 41-50 reflects [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A rating of 51-60 reflects [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. 11 1 findings that: [plaintiff] was found fully oriented with his 2 intellectual functions, including memory and concentration, remaining 3 intact ; (2) [plaintiff] was reported to experience no hallucinations ; 4 and (3) [plaintiff s] thought process was termed normal and goal 5 directed. (Id.; internal citations omitted.) 6 7 However, the ALJ did not summarize Dr. Aryanpur s report fairly. 8 For example, the ALJ failed to address Dr. Aryanpur s findings that 9 plaintiff has delusions (A.R. 403) and that his thought content, as 10 opposed to his 11 broadcasting, and insertion (A.R. 406). 12 no mention of Dr. Aryanpur s finding that plaintiff had psychomotor 13 slowing and blunted affect. 14 ALJ 15 summarizing and/or ignoring competent evidence in his report. 16 the 17 discrediting Dr. Aryanpur s opinion. attempted ALJ did thought to not process, (A.R. 405.) discredit provide includes, Dr. a of reference, In addition, the ALJ made In sum, it appears that the Aryanpur s specific ideas and opinion by legitimate improperly As such, reason for 18 19 3. Dr. Cross 20 Plaintiff also claims that the ALJ did not consider properly the 21 22 opinion of consulting clinical psychologist Kara Cross, Ph.D. 23 On February 25, 2008, at the request of the Department of Social 24 25 Services, 26 psychological evaluation of plaintiff. 27 observations, Dr. Cross noted that plaintiff arrived on time and was a 28 neat and Disability clean, Determination well-groomed, Service, Cross (A.R. 301-06.) personable 12 Dr. young performed a In her clinical man[,] who was 1 cooperative and put forth his best effort. (A.R. 301.) Dr. Cross 2 observed, inter alia, that plaintiff had: a flat mood and somewhat flat 3 affect; unimpaired gross and fine muscle skills; no active delusions or 4 perservations; no speech, hearing, or vision impairments; and adequate 5 attention and concentration. (Id.) 6 7 During the evaluation, plaintiff reported to Dr. Cross that he had 8 a history of auditory and visual 9 diagnosed with schizophreniform. hallucinations (A.R. 301.) and ha[d] been Additionally, plaintiff 10 reported that he developed panic attacks and some social fears and 11 social withdrawal. (Id.) Plaintiff stated that he stopped working due 12 to fear, and because he ha[d] difficulty completing tasks, and c[ould 13 not] take the stress of taking orders. (A.R. 302.) 14 15 Based on her examination, as well as the results of plaintiff s 16 performance on various mental status examinations, Dr. Cross diagnosed 17 plaintiff with schizophrenia and assessed plaintiff with a GAF score of 18 50. 19 difficulty 20 workday. (A.R. 305.) Dr. Cross opined, however, that plaintiff would 21 be able to handle a part-time work basis in a low stress, repetitive 22 task work setting. 23 plaintiff can understand and carry out simple tasks, but he has a blunt 24 affect, poor social skills, and does not relate well to others. 25 306.) (A.R. 302-05.) maintaining Dr. Cross opined that plaintiff would have employment (Id.) for a 40-hour workweek 8-hour In so finding, Dr. Cross noted that (A.R. 26 27 The ALJ rejected Dr. Cross s opinion that plaintiff s mental 28 impairment restricts him from working on a full-time basis, because: 13 1 (1) Dr. Cross opined that plaintiff was only moderately limited with 2 medication compliance; (2) [plaintiff] s limitation to a part[-]time 3 position is a determination left to the Commissioner ; and (3) Dr. Cross 4 did not have access to plaintiff s clinical records and did not cite any 5 objective basis for her opinion. (A.R. 11.) 6 7 The ALJ s first reason for rejecting Dr. Cross s opinion is not 8 specific and legitimate. In summarizing Dr. Cross s opinion and 9 findings, the ALJ noted that Dr. Cross found plaintiff to be moderately 10 functional when taking his medication. 11 noted that [t]he term moderate, as used for [Dr. Cross s] evaluation, 12 is defined as more than a slight limitation with the individual still 13 able to function well. 14 term 15 Further, his suggestion that plaintiff would still be able to function 16 well 17 sentences, that [a] full-time position . . . would . . . [place] a 18 tremendous amount of stress on [plaintiff] and he might deteriorate. 19 part-time position would work much better for [plaintiff]. (A.R. 306.) 20 Accordingly, to the extent the ALJ rejects Dr. Cross s opinion because 21 plaintiff can still function well when taking his medication, the 22 ALJ s reasoning is unpersuasive. moderate is belied is by Id. The ALJ further However, the ALJ s interpretation of the contained Dr. (A.R. 11.) nowhere Cross s in Dr. statement, in Cross s the evaluation. very next two A 23 24 The ALJ s second reason for rejecting Dr. Cross s opinion -- to 25 wit, that [plaintiff] s limitation to a part-time position is a 26 determination left to the Commissioner -- is unavailing. 27 medical source statement on an issue reserved to the Commissioner, such 28 as the determination of a claimant s ultimate disability, is not 14 Although a 1 determinative or entitled to special weight, the Commissioner is not 2 free to disregard this information. Social Security Ruling ( SSR ) 96- 3 8p, 1996 SSR LEXIS 5, at *21 n.8. Instead, the ALJ is instructed to 4 consider such opinions in adjudicating a disability claim. 5 not only did Dr. Cross opine that plaintiff would be better suited for 6 part-time work, but also in so finding, Dr. Cross opined that, because 7 of plaintiff s mental impairment, a full-time position would place a 8 tremendous amount of stress on plaintiff, which might cause him to 9 deteriorate. (A.R. 306.) Id. Here, Rather than affording weight to Dr. Cross s 10 opinion regarding plaintiff s limitations related to full-time work, the 11 ALJ rejected it outright on the ground that Dr. Cross also rendered a 12 non-dispositive opinion regarding ultimate disability. 13 constitute a specific reason for rejecting Dr. Cross s opinion, it is 14 not a legitimate one. While this may 15 16 Lastly, the ALJ rejected Dr. Cross s opinion that plaintiff could 17 not sustain a full-time position, because Dr. Cross did not have access 18 to plaintiff s clinical records and did not cite any objective basis for 19 her finding. 20 with plaintiff s clinical records. 21 we arrange for [a consultative examination or test, . . . [we] will also 22 give the examiner any necessary background information about your 23 condition. ) However, despite the failure to provide Dr. Cross with the 24 requisite and necessary background information, and contrary to the 25 ALJ s finding, Dr. Cross s opinion regarding plaintiff s inability to 26 sustain full-time work was based on objective evidence -- to wit, her 27 observations of plaintiff as well as plaintiff s performance on various 28 modes of psychiatric evaluation. As an initial matter, Dr. Cross should have been provided 20 C.F.R. §§ 404.1517, 416.917 ( If 15 1 Nonetheless, the fact that Dr. Cross was not provided with 2 plaintiff s clinical records and, thus, may not have had a sufficiently 3 complete picture of plaintiff s condition, may constitute a specific and 4 legitimate reason for rejecting her opinion. 5 not reach this issue, because this case is being remanded for the 6 reasons stated supra. 7 should provide Dr. Cross with plaintiff s records so that she can render 8 an opinion based upon a complete review of the medical record. However, the Court need Accordingly, on remand, the ALJ, if appropriate, 9 10 II. The ALJ Must Review And Reconsider Plaintiff s RFC And Plaintiff s Ability to Perform Other Work. 11 12 13 Based on the foregoing, there are several matters that the ALJ 14 needs to review and reconsider on remand. 15 conclusion regarding plaintiff s RFC and plaintiff s ability to do other 16 work may change. Therefore, the Court does not reach plaintiff s fourth 17 and fifth claims, to wit, that the ALJ erred in determining plaintiff s 18 RFC and failed to pose a complete hypothetical to the vocational expert. 19 To properly review and reconsider these issues, the ALJ needs to 20 reconsider the above-noted medical opinions. 21 that 22 vocational expert likely will be required to determine what work, if 23 any, plaintiff can perform. plaintiff s RFC is reassessed, As a result, the ALJ s Further, to the extent additional testimony from a 24 25 III. Remand Is Required. 26 27 The decision whether to remand for further proceedings or order an 28 immediate award of benefits is within the district court s discretion. 16 1 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 2 useful purpose would be served by further administrative proceedings, or 3 where the record has been fully developed, it is appropriate to exercise 4 this discretion to direct an immediate award of benefits. 5 ( [T]he decision of whether to remand for further proceedings turns upon 6 the likely utility of such proceedings. ). 7 outstanding issues that must be resolved before a determination of 8 disability can be made, and it is not clear from the record that the ALJ 9 would be required to find the claimant disabled if all the evidence were 10 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 11 12 Remand is the appropriate remedy to allow the ALJ the opportunity 13 to remedy the above-mentioned deficiencies and errors. 14 Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 15 2011)(remanding 16 Astrue, 373 Fed. Appx. 804, 806 (9th Cir. April 5, 2010)(remanding for 17 consideration of additional medical opinions that lent support for 18 another physician s opinion); Stillwater v. Comm r of Soc. Sec. Admin., 19 361 20 reconsideration 21 discredited because they were based on a treating physician s opinion 22 that the ALJ rejected improperly). 23 above-mentioned deficiencies and errors. Fed. Appx. for consideration 809, of 812 State of (9th psychiatric Cir. agency Jan. physicians 7, See, e.g., opinion); Lay 2010)(remand opinions that v. for were On remand, the ALJ must correct the 24 25 CONCLUSION 26 27 Accordingly, for the reasons stated above, IT IS ORDERED that the 28 decision of the Commissioner is REVERSED, and this case is REMANDED for 17 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 19, 2012 10 11 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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