Langford v. Astrue, No. 2:2011cv03095 - Document 20 (E.D. Wash. 2014)
Court Description: ORDER Granting 12 Plaintiff's Motion for Summary Judgment and Denying 15 Defendant's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (PL, Case Administrator)
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Langford v. Astrue Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 8 9 PATRICIA LANGFORD, 10 Plaintiff, 11 v. No. CV-11-3095-RHW 1 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, 13 14 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 15 Before the Court are the parties’ cross-motions for summary judgment. ECF 16 17 Nos. 12, 15. James Tree represents Plaintiff Patricia Langford. Assistant United 18 States Attorney Pamela J. DeRusha and Special Assistant United States Attorney 19 Thomas S. Inman represent the Defendant Commissioner of Social Security (the 20 “Commissioner”). Plaintiff brings this action seeking judicial review under 42 21 U.S.C. § 405(g) of the Commissioner’s final decision, which denied her 22 application for Disability Insurance Benefits (“DIB”). After reviewing the 23 administrative record and the parties’ briefs, the Court is now fully informed. 24 25 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of 42 U.S.C. § 405(g). ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 1 q:\rhw\acivil\2011\langford (ss)\order sj.docx Dockets.Justia.com 1 2 For the reasons set forth below, the Court denies Defendant’s Motion for Summary Judgment, and directs entry of judgment in favor of Plaintiff. 3 4 I. Jurisdiction and Procedural History On July 2, 2008, Plaintiff protectively filed an application for DIB, alleging 5 disability beginning on March 31, 2006. Transcript (hereafter “Tr.”) 12, 31, 117. 6 Plaintiff’s claim was denied initially on July 2, 2008, and upon reconsideration on 7 November 4, 2008. Tr. 12. Thereafter, Plaintiff timely requested a hearing before 8 an administrative law judge (“ALJ”). Id. Plaintiff then appeared with counsel and 9 testified at a video hearing held May 25, 2010. Tr. 27-67. ALJ Marie Palachuk 10 presided over the hearing and took testimony from medical expert (“ME”) Steven 11 Gerber, M.D., vocational expert (“VE”) Daniel R. McKinney, and Plaintiff’s 12 husband Thomas Langford. Id. On June 11, 2010, the ALJ issued a decision 13 denying benefits. Tr. 12-21. Subsequently, on July 23, 2011, the Appeals Council 14 denied Plaintiff’s request for review, which made the ALJ’s decision the 15 Commissioner’s final decision and subject to judicial review. Tr. 1-3. Thus, 16 Plaintiff’s claim is properly before this Court pursuant to 42 U.S.C. § 405(g). 17 18 II. Sequential Evaluation Process The Social Security Act (the “Act’) defines disability as the “inability to 19 engage in any substantial gainful activity by reason of any medically determinable 20 physical or mental impairment which can be expected to result in death or which 21 has lasted or can be expected to last for a continuous period of not less than twelve 22 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be 23 determined to be under a disability only if her impairments are of such severity that 24 the claimant is not only unable to do his previous work, but cannot, considering 25 claimant's age, education and work experiences, engage in any other substantial 26 gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 27 1382c(a)(3)(B). 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 2 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 The Commissioner has established a five-step sequential evaluation process 2 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 3 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 4 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 5 §§ 404.1520(b), 416.920(b). Substantial gainful activity is work done for pay and 6 requires compensation above the statutory minimum. 20 C.F.R. §§ 404.1574, 7 416.972; Keyes v. Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is 8 engaged in substantial activity, benefits are denied. 20 C.F.R. §§ 404.1571, 9 416.920(b). If she is not, the ALJ proceeds to step two. 10 Step 2: Does the claimant have a medically-severe impairment or 11 combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 12 claimant does not have a severe impairment or combination of impairments, the 13 disability claim is denied. A severe impairment is one that lasted or must be 14 expected to last for at least 12 months and must be proven through objective 15 medical evidence. 20 C.F.R. §§ 404.1508-09, 416.908-09. If the impairment is 16 severe, the evaluation proceeds to the step three. 17 Step 3: Does the claimant's impairment meet or equal one of the listed 18 impairments acknowledged by the Commissioner to be so severe as to preclude 19 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. 20 § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or equals one of 21 the listed impairments, the claimant is conclusively presumed to be disabled. Id. If 22 the impairment is not one conclusively presumed to be disabling, the evaluation 23 proceeds to the step four. 24 Step 4: Does the impairment prevent the claimant from performing work 25 she has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the 26 claimant is able to perform her previous work, she is not disabled. Id. If the 27 claimant cannot perform this work, the ALJ proceeds to the final step five. 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 3 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 Step 5: Is the claimant able to perform other work in the national economy 2 in view of her age, education, and work experience? 20 C.F.R. §§ 404.1520(f), 3 416.920(f). 4 The claimant bears the burden of proof at steps one through four as detailed 5 above. Molina v. Astrue, 674 F.3d at 1104, 1111 (9th Cir. 2012); Lockwood v. 6 Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If the analysis 7 proceeds to step five, the burden shifts to the Commissioner to establish that: 8 (1) the claimant is capable of performing other work; and (2) such work “exists in 9 significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c); 10 416.960(c)(2); Beltran v. Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012). 11 12 III. Standard of Review A district court's review of a final decision of the Commissioner of Social 13 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 14 limited, and the Commissioner's decision will be disturbed “only if it is not 15 supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 16 F.3d 1144, 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence is “more 17 than a mere scintilla but less than a preponderance; it is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 19 Chater, 108 F.3d 978, 980 (9th Cir.1997) (per curiam) (internal citation omitted). 20 In determining whether this standard has been satisfied, “a reviewing court must 21 consider the entire record as a whole and may not affirm simply by isolating a 22 ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 466 F.3d 23 880, 882 (9th Cir. 2006) (internal citation omitted). 24 In reviewing a denial of benefits, a district court may not substitute its 25 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 26 1992). If the evidence in the record “is susceptible to more than one rational 27 interpretation, [the court] must uphold the ALJ's findings if they are supported by 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 4 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111. Further, 2 a district court “may not reverse an ALJ's decision on account of an error that is 3 harmless.” Id. An error is harmless “where it is inconsequential to the [ALJ's] 4 ultimate nondisability determination.” Id. at 1115 (internal citation omitted). The 5 party appealing the ALJ's decision generally bears the burden of establishing that it 6 was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 7 8 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 9 and only briefly summarized here. Plaintiff was born on July 21, 1951, and was 54 10 years-old as of her alleged onset date of disability. Tr. 117. Plaintiff, a high school 11 graduate, worked primarily as a legal assistant, but also as an owner/manager of a 12 café. Tr. 128-130. 13 Plaintiff suffered a heart attack in August of 2005. Tr. 43, 225. Thereafter, 14 Plaintiff attempted to return to work part-time, but alleges she could not maintain 15 her prior employment. Plaintiff alleges that she is unable to work due to a 16 combination of physical impairments, including: coronary artery disease (“CAD”), 17 diabetes, morbid obesity, hypothyroidism, hypertension, hyperlipidemia, 18 dyslipidemia, peripheral neuropathy in both feet, gastro esophageal reflux disease 19 (“GERD”), left C6 radiculopathy with pain, osteophytes at C5-6, and anemia. ECF 20 No. 13 at 3. 21 22 V. The ALJ’s Findings The ALJ determined Plaintiff was not disabled under sections 216(i) and 23 223(d) of the Act, and denied her application for DIB, protectively filed on July 2, 24 2008. See ALJ’s Decision, June 11, 2010, Tr. 12-21. 25 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 26 activity during the period from her alleged onset date of March 31, 2006, through 27 her date last insured determined to be September 30, 2007. Tr. 14. 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 5 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 2 At step two, the ALJ found Plaintiff’s coronary artery disease (“CAD”) with 3 hypercholesterolemia and hyperlipidemia, hypertension, gastro esophageal reflex 4 disease (“GERD”), diabetes, hypothyroidism, obesity, and possible degenerative 5 disc disease with C5-6 spondylosis were severe impairments according to the 6 Social Security Act’s definition. Tr. 14 (citing 20 C.F.R. §§ 404.1520(c)). 7 At step three, the ALJ found that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled one of the listed 9 impairments in 20 C.F.R. § 404, Subpt. P, App. 1 (the “Listings”). Tr. 15-16. 10 As to her CAD, the ALJ considered whether Plaintiff’s impairment met the 11 severity of listing 4.04 – Ischemic Heart Disease, or any other cardiovascular 12 listing, and determined that it did not because Plaintiff’s records from her heart 13 center reported “that [she] was doing extremely well and she had no angina.” Tr. 14 15. As to high blood pressure, the ALJ determined there is no medical listing for 15 high blood pressure and concluded no evidence existed that Plaintiff has any 16 hypertension symptoms that equal any other listing. Tr. 16. 17 Additionally, as to diabetes, the ALJ concluded Plaintiff did not meet the 18 severity of medical listing 9.08 – Diabetes Mellitus, because no evidence existed, 19 during the time at issue, “of significant and persistent disorganization of motor 20 function in two extremities resulting in sustained disturbance of gross and 21 dexterous movements or gait and station, acidosis occurring at least on the average 22 of once every two months[.]” Id. 23 Moreover, as to hypothyroidism, the ALJ determined Plaintiff’s impairment 24 did not meet the listing for hypothyroidism because no evidence existed indicating 25 Plaintiff has any symptoms from hypothyroidism that equaled any other listing for 26 an affected body system. Id. Further, as to her obesity, the ALJ concluded that the 27 effects of Plaintiff’s obesity do not medically equal a listing, nor do the combined 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 6 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 effects of her impairment meet or medically equal a medical listing. Id. Finally, as 2 to her cervical impairment, the ALJ considered whether Plaintiff’s spinal 3 impairments met a listing for 1.04 – Disorders of the Spine, and determined that 4 they did not because Plaintiff’s medical records do not document any neurological 5 deficits related to a spinal disorder. Id. At step four, relying on the VE’s testimony, the ALJ found Plaintiff had the 6 7 residual functional capacity (“RFC”) to perform sedentary work 2 as defined in 20 8 CFR 404.1567(a). Tr. 16. However, the ALJ also found Plaintiff could 9 occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but 10 could not climb ladders, ropes, or scaffolds. Id. The ALJ then found that Plaintiff was unable to perform her past relevant 11 12 work as a legal assistant or coffee maker barista. Tr. 19. 13 At step five, after considering her age, education, work experience, and 14 RFC, the ALJ found Plaintiff had acquired work skills from past relevant work that 15 were transferable to other occupations with jobs existing in significant numbers in 16 the national economy. Tr. 19. The ALJ based this decision on the VE’s testimony 17 and his review of the Dictionary of Occupational Title (“DOT”) that individuals 18 with Plaintiff’s age, education, work experience, and RFC can perform jobs like 19 receptionist and information clerk. Id. at 20. As a result of these findings, the ALJ 20 concluded Plaintiff was not disabled under the meaning of the Act. Id. 21 VI. Issues for Review Plaintiff alleges the ALJ erred by: (1) improperly rejecting the opinions of 22 23 her treating medical providers; (2) failing to consider the side effects of her 24 medication; (3) improperly rejecting the lay witness testimony of her husband; (4) 25 26 27 28 2 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20 C.F.R. §§ 404.1567(a), 416.967(a) ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 7 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 improperly rejecting Plaintiff’s subjective complaints; and (5) failing to meet the 2 ALJ’s burden at step five of the sequential evaluation process. ECF No. 13 at 7-8. 3 Defendant responds the ALJ’s decision was supported by substantial evidence and 4 free of harmful legal error. ECF No. 16 at 11. 5 6 7 8 9 VII. Discussion A. The ALJ Properly Evaluated the Medical Opinion of Dennis McCullough, PA-C Plaintiff argues the ALJ improperly rejected the opinion of her treating medical provider, Dennis McCullough, PA-C, as the ALJ failed to provide valid 10 reasons for rejecting Mr. McCullough’s opinion. ECF No. 13 at 10-12. Mr. 11 McCullough assessed Plaintiff on January 15, 2010, and completed a medical 12 source statements related to her physical ability to complete work related activities. 13 Tr. 339-345, 461-67. Mr. McCullough opined, inter alia, that Plaintiff could sit for 14 one hour, stand for 5-10 minutes, and would have to get up and move around for 15 45 minutes, due to chronic knee pain. Tr. 340. 16 Mr. McCullough is a certified physician’s assistant which is considered an 17 “other source” opinion by the Commissioner. See C.F.R. § 404.1513(d); SSR 06- 18 03p. Thus, to properly reject this opinion, the ALJ need only provide “germane” 19 reasons because Mr. McCullough is not a physician and classified as a non-medical 20 source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 21 Despite Plaintiff’s argument, the ALJ satisfied her burden as to the medical 22 opinion evidence by resolving conflicts in the medical record and setting forth 23 valid reasons based on substantial evidence in the record. Here, the ALJ rejected 24 Mr. McCullough’s opinion because it was internally inconsistent, failed to provide 25 a sensible explanation of Plaintiff’s functional ability, and no evidence existed that 26 the limitations addressed the relevant period at issue. Tr. 18. 27 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 8 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 First, the Court agrees with Defendant that the functional limitations 2 regarding sitting/standing/walking assessed by Mr. McCullough do not provide a 3 sensible explanation of Plaintiff’s physical limitations. In fact, the only medical or 4 clinical findings which were listed in support of the assessment, chronic knee pain, 5 do not fully account for the limitations assessed or explain why knee pain would 6 limit Plaintiff’s ability to sit. See Holohan v. Massanari, 246 F.3d 1195, 1202 (9th 7 Cir. 2001) (“[T]he regulations give more weight to opinions that are explained than 8 to those that are not.”). 9 Second, the Court agrees with the ALJ’s reasoning that Mr. McCullough’s 10 report did not cover the relevant time period, as it dates to 2010, and not the time 11 period at issue, March 31, 2006 to September 31, 2007. Although the report 12 indicated Plaintiff was diagnosed with diabetes in 2005, cervical spine disease in 13 2008, and CAD in 2005, Mr. McCullough assessed the postural limitations noted 14 above based on knee pain and not CAD. Thus, the report was internally 15 inconsistent and failed to provide adequate evidence that the limitations assessed 16 applied to the relevant time period. Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th 17 Cir. 2012). In sum, the Court finds no error in the rejection of a physician’s assistant’s 18 19 opinion that is inadequately supported by clinical findings and internally 20 inconsistent where it is unclear whether the limitations assessed relate to the period 21 of alleged disability. 22 B. 23 The ALJ’s Failure to Discuss the Side Effects of Plaintiff’s Medication Plaintiff next argues the ALJ erred by failing to consider the side effects of 24 her medication, such as the frequent need to urinate throughout the work-day. ECF 25 No. 13 at 12-14. At the hearing, Plaintiff testified that she was prescribed diuretics 26 in response to the swelling in her feet, after suffering a heart attack. Tr. 45-46. 27 Consequently, Plaintiff testified that after taking her medication she “would be up 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 9 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 and down at least every 10 to 20 minutes,” which equated to five or six times per 2 hour, based on an eight hour work-day. Tr. 46. In addition, Plaintiff’s husband 3 testified to the similar limitations regarding her frequent urination. Tr. 65. Despite 4 this testimony, the ALJ failed to address Plaintiff’s subjective complaints regarding 5 the side effects of her medication. 6 Defendant concedes the ALJ erred by failing to discuss the testimony of 7 Plaintiff, and her husband, concerning the side effects of the medication, but 8 submits such error was harmless as it was not supported by the medical records. 9 ECF No. 16 at 14-16. 10 According to the Ninth Circuit, the ALJ must “consider all factors that might 11 have a ‘significant impact on an individual's ability to work.’” Erickson v. Shalala, 12 9 F.3d 813, 817 (9th Cir.1993) (quoting Varney v. Sec'y of Health & Human 13 Servs., 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 (1988)). Such 14 factors “may include side effects of medications [.]” Id. at 818. When the ALJ 15 disregards the claimant's testimony as to subjective limitations of side effects, he 16 must support that decision with specific findings similar to those required for 17 excess pain testimony, as long as the side effects are in fact associated with the 18 claimant's medications. See Varney, 846 F.2d at 545. Varney is a case in which the 19 claimant testified that her medications caused fairly severe side effects. Id. at 585. 20 The Varney court concluded: 21 22 23 24 25 26 27 28 Like pain, the side effects of medications can have a significant impact on an individual's ability to work and should figure in the disability determination process. Also like pain, side effects can be a “highly idiosyncratic phenomenon” and a claimant's testimony as to their limiting effects should not be trivialized. Therefore, if the Secretary chooses to disregard a claimant's testimony as to the subjective limitations of side effects, he must support that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medication(s). ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 10 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 Because no such findings were made here, we remand the matter so that, as in the case of the pain testimony, the ALJ may either accept Varney's evidence regarding side effects or make specific findings rejecting such evidence. Again, any specific findings rejecting her testimony must be supported by the record and will be subject to further review by the courts. 2 3 4 5 6 Varney, 846 F.2d 581, 585-86 (internal citations omitted). The Court finds that Varney applies to the facts of this case. Here, as in 7 8 9 10 11 12 13 14 Varney, the ALJ did not address the claimant’s complaint of her medication’s side effects. Id. Although Defendant argues such error was harmless, and identifies reasons for rejecting or discounting Plaintiff’s testimony (e.g., such limitations were not supported by objective medical evidence), these reasons were not invoked by the ALJ. As a result, this Court cannot consider those reasons where the ALJ did not justify her decision to reject Plaintiff’s testimony without making specific findings. See Connett v. Barnhart, 340 F.3d 871, 873-74 (9th Cir. 2003). Moreover, as the record reveals, Plaintiff’s counsel examined the VE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extensively regarding her frequent urination, which the VE determined would negatively affect Plaintiff’s RFC and her ability to maintain employment. See Tr. 59-60. Thus, the failure to discuss the side effects of Plaintiff’s medication was not harmless and remand is required to reassess the ALJ’s RFC findings at step 4 and possibly step 5. On remand, the ALJ is directed to consider Plaintiff’s testimony regarding her frequent urination. C. Plaintiff’s Remaining Arguments As remand is necessary to properly assess the side effects of Plaintiff’s medications, which in turn requires the ALJ to reassess Plaintiff’s credibility and possibly her RFC; the Court need not consider Plaintiff’s remaining arguments that the ALJ improperly rejected the lay witness testimony of her husband, improperly rejected her subjective complaints, and failed to meet the ALJ’s burden at step 5 by incorrectly assessing her RFC. ECF No. 13 at 14-20. Although set forth as separate ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 11 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 claims, Plaintiff's remaining arguments are, in fact, related as they turn on the 2 reassessment of Plaintiff’s credibility regarding her testimony related to frequent 3 urination. 4 5 VIII. Remand With error established, the Court has the discretion to remand for further 6 proceedings or reverse and order an immediate award of benefits. Harman v. Apfel, 7 211 F.3d 1172, 1175–78 (9th Cir.2000). Where no useful purpose would be served 8 by further administrative proceedings, or where the record has been fully 9 developed, it is appropriate to exercise this discretion to direct an immediate award 10 of benefits. Id. at 1179 (“[T]he decision of whether to remand for further 11 proceedings turns upon the likely utility of such proceedings.”). However, where 12 there are outstanding issues that must be resolved before a determination of 13 disability can be made, and it is not clear from the record that the ALJ would be 14 required to find the claimant disabled if all the evidence were properly evaluated, 15 remand is appropriate. Id. at 1179–81. 16 Here, remand is the appropriate remedy to allow the ALJ the opportunity to 17 remedy the aforementioned error. On remand, the ALJ is directed to evaluate 18 Plaintiff’s subjective limitations regarding her frequent urination as a side effect of 19 the diuretics prescribed to stem the swelling of her feet. See Tr. 45-46, 59-60. This 20 reevaluation should also include the lay testimony of claimant’s husband who 21 testified to the same limitations regarding her frequent urination. See Tr. 65. In 22 addition, enhancement of the record may be necessary to resolve outstanding 23 issues at steps four, and possibly five that must be remedied before a determination 24 of disability can be made. 25 26 27 28 IX. Conclusion Based on the foregoing, the Court finds the Commissioner’s decision is not free of legal error or supported by substantial evidence. Therefore, the case is ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 12 q:\rhw\acivil\2011\langford (ss)\order sj.docx 1 reversed and remanded to the Commissioner for further proceedings not 2 inconsistent with the Court’s instructions noted above. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 6 3. The Commissioner’s decision denying Plaintiff benefits is REVERSED, 7 8 9 and this case is REMANDED for further proceedings consistent with this Order. 4. The District Court Executive is directed to enter judgment in favor of Plaintiff and against Defendant. 10 5. An application for attorney’s fees may be filed by separate motion. 11 IT IS SO ORDERED. The District Court Executive is directed to enter this 12 13 Order, forward copies to counsel, and close the file. DATED this 7th day of March, 2014. 14 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PL.’S MOTION FOR SUMMARY JUDGMENTAND DENYING DEF.’S MOTION FOR SUMMARY JUDGMENT * 13 q:\rhw\acivil\2011\langford (ss)\order sj.docx
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