Mundorff v. Colvin, No. 2:2013cv00178 - Document 21 (E.D. Wash. 2014)

Court Description: ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 18 ) AND REMANDING FOR ADDITIONAL PROCEEDINGS and denying ECF No. 19 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF WASHINGTON 9 MICHAEL W. MUNDORFF, 10 11 12 No. 2:13-CV-0178-JTR Plaintiff, v. 13 CAROLYN W. COLVIN, 14 Commissioner of Social Security, 15 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 16 17 BEFORE THE COURT are Cross-Motions for Summary Judgment. ECF 18 No. 18, 19. Attorney Dana Chris Madsen represent Michael W. Mundorff 19 (Plaintiff); Special Assistant United States Attorney Daphne Banay represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff protectively filed an application for a period of disability and 28 Disability Insurance Benefits on October 6, 2010, alleging disability since April ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 1 15, 2010, Tr. 147, due to degenerative joint disease and severe manic depression, 2 Tr. 167. The application was denied initially and upon reconsideration. 3 Administrative Law Judge (ALJ) R.J. Payne held a hearing on March 29, 2012, Tr. 4 36-84, and issued an unfavorable decision on April 17, 2012, Tr. 15-26. The 5 Appeals Council denied review on March 16, 2013. Tr. 1-7. The ALJ’s April 6 2012 decision became the final decision of the Commissioner, which is appealable 7 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 8 judicial review on May 13, 2013. ECF No. 1, 5. 9 STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was born on February 8, 1976, and was 34 years old on the alleged 14 onset date, April 15, 2010. Tr. 163. He completed high school and completed 15 truck driving education in June 2001. Tr. 168. Plaintiff testified at the 16 administrative hearing that he stopped working in 2010 because he could no longer 17 stand very long without pain and leg numbness. Tr. 66. When asked how he spent 18 a typical day, Plaintiff replied he mostly hid from people and explained he did not 19 like to be around people. Tr. 78-79. Nevertheless, he indicated he spends two 20 hours a day at the public library playing on the internet and talking with his family. 21 Tr. 79. He stated he owned a game boy and considered himself a “gamer” and 22 liked to read books. Tr. 79-80. Plaintiff also testified he regularly attended 23 church. Tr. 81-82. 24 25 ADMINISTRATIVE DECISION The ALJ found Plaintiff had not engaged in substantial gainful activity since 26 April 15, 2010, the alleged onset date. Tr. 17. At step two, the ALJ determined 27 Plaintiff had severe impairments of degenerative joint disease and major 28 depressive disorder. Tr. 17. At step three, the ALJ found Plaintiff’s severe ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 impairments did not meet or medically equal a listed impairment. Tr. 17. The ALJ 2 assessed Plaintiff’s RFC and determined Plaintiff could perform light exertion 3 level work except he can only occasionally balance, stoop, crouch, crawl, kneel, 4 climb ramps and stairs, but never climb ladders, ropes, or scaffolds and should 5 have no more than superficial contact with the general public. Tr. 20. At step 6 four, the ALJ determined Plaintiff was able to perform his past relevant work as a 7 delivery driver, order filler, machine operator, cashier, and customer service 8 representative. Tr. 24-26. The ALJ thus concluded Plaintiff was not under a 9 disability within the meaning of the Social Security Act at any time from April 15, 10 2010, the alleged onset date, through the date of the decision, April 17, 2012. Tr. 11 26. 12 13 14 15 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the Court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is 16 reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The 17 decision of the Commissioner may be reversed only if it is not supported by 18 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 19 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a 20 mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 21 substantial evidence is such relevant evidence as a reasonable mind might accept 22 as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 23 (1971). If the evidence is susceptible to more than one rational interpretation, the 24 Court may not substitute its judgment for that of the Commissioner. Tackett, 180 25 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 26 (9th Cir. 1999). 27 28 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 2 although deference is owed to a reasonable construction of the applicable statutes. 3 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 4 It is the role of the trier of fact, not this Court, to resolve conflicts in 5 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 8 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 9 still be set aside if the proper legal standards were not applied in weighing the 10 evidence and making the decision. Brawner v. Secretary of Health and Human 11 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 12 support the administrative findings, or if conflicting evidence exists that will 13 support a finding of either disability or non-disability, the Commissioner’s 14 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 15 Cir. 1987). 16 17 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 18 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 19 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 20 through four, the burden of proof rests upon the claimant to establish a prima facie 21 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 22 burden is met once a claimant establishes that a physical or mental impairment 23 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 24 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 25 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 26 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 27 in the national economy which claimant can perform. Batson v. Commissioner of 28 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 an adjustment to other work in the national economy, a finding of “disabled” is 2 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 3 ISSUE 4 The question presented is whether substantial evidence exists to support the 5 ALJ’s decision denying benefits and, if so, whether that decision is based on 6 proper legal standards. Plaintiff contends the ALJ erred when assessing Plaintiff’s psychological 7 8 limitations by relying on the opinion of Dr. Moore, a non-treating, non-examining 9 medical source, and discounting the opinions of Drs. Charboneau and Pollack. 10 ECF No. 18 at 9. Defendant responds that the ALJ provided appropriate rationale 11 for discounting the opinions of Dr. Pollack. ECF No. 19 at 8. Defendant, 12 however, failed to address the medical report of Dr. Charboneau and does not 13 mention the testimony of Dr. Moore. ECF No. 19. 14 15 DISCUSSION A. Physical Limitations 16 Plaintiff does not contest the ALJ’s RFC determination with respect to his 17 physical capabilities. The ALJ determined that Plaintiff had the physical RFC to 18 perform light exertion level work with some postural limitations. Tr. 20. This 19 determination by the ALJ is supported by substantial evidence and free of legal 20 error. 21 B. 22 Mental Limitations Plaintiff contends the ALJ erred with respect to the mental RFC 23 determination in this case. Plaintiff specifically asserts the ALJ erred by according 24 controlling weight to the medical expert regarding Plaintiff’s psychological 25 limitations. ECF No. 18 at 9-11. 26 In a disability proceeding, the courts distinguish among the opinions of three 27 types of physicians: treating physicians, physicians who examine but do not treat 28 the claimant (examining physicians) and those who neither examine nor treat the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 839 (9th Cir. 2 1996). The Ninth Circuit has held that “[t]he opinion of a nonexamining physician 3 cannot by itself constitute substantial evidence that justifies the rejection of the 4 opinion of either an examining physician or a treating physician.” Id. at 830; 5 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). An ALJ’s decision to reject 6 the opinion of a treating or examining physician may be based in part on the 7 testimony of a nonexamining medical advisor. Magallanes v. Bowen, 881 F.2d 8 747, 751-755 (9th Cir. 1989); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 9 1995). However, the ALJ must also have other evidence to support the decision 10 such as laboratory test results, contrary reports from examining physicians, and 11 testimony from the claimant that was inconsistent with the physician’s opinion. 12 Magallanes, 881 F.2d at 751-752; Andrews, 53 F.3d 1042-1043. 13 On December 8, 2010, Gregory J. Charboneau, Ed.D, examined Plaintiff. 14 Tr. 240-244. Dr. Charboneau noted Plaintiff was living in a shelter at the time, 15 Plaintiff’s fiancée was living at a different shelter, and the couple’s young daughter 16 was living with Plaintiff’s parents in Florida until the couple could obtain a place 17 to live together. Tr. 240. Plaintiff reported he gets up around six a.m., drinks 18 coffee, and then goes to the public library to use the computer. Tr. 242. He 19 indicated he obtains and completes job applications, visits with his fiancée daily 20 and volunteers two times a week for the Salvation Army as a bell ringer to collect 21 donations. He showers and brushes his teeth each night and goes to bed about nine 22 p.m. Tr. 242. Dr. Charboneau noted that while Plaintiff reported being previously 23 diagnosed with Severe Manic Depressive Disorder, Plaintiff did not present with 24 Manic symptoms during the clinical interview. Tr. 243. Dr. Charboneau 25 nevertheless diagnosed Major Depressive Disorder Severe without Psychotic 26 Features; Rule Out Bipolar Disorder, NOS; Rule Out Pain Disorder Associated 27 with Both Psychological Factors and a General Medical Condition, chronic, 28 Alcohol Dependence, Early Full Remission; and Cannabis Dependence, prior ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 history, and gave Plaintiff a Global Assessment of Functioning Score of 28.1 Tr. 2 243. 3 Chart notes from Community Health Association of Spokane (CHAS) 4 indicate Plaintiff was first seen by Douglass Duncan, PA-C, on January 11, 2011, 5 with an initial impression of “moderately severe depression.” Tr. 245-246. On 6 January 20, 2011, Plaintiff denied depressive symptoms, but his fiancée reported 7 Plaintiff had recurrent suicidal ideation and depression for many years. Tr. 247. 8 Mr. Duncan indicated he did not get a sense of a mood disorder (mania or 9 hypomania) at that time. Tr. 248. On February 3, 2011, Plaintiff reported 10 experiencing depressed mood, diminished interest or pleasure, fatigue or loss of 11 energy, feelings of guilt or worthlessness, sleep disturbance and thoughts of death 12 or suicide. Tr. 250. It was noted he previously denied depressive symptoms, but, 13 on this occasion, agreed with his fiancée that he had experienced depression for 14 many years. Tr. 250. On March 21, 2011, Plaintiff presented to Mr. Duncan with 15 his fiancée to discuss his mental health. Tr. 253. It was noted that Plaintiff was 16 given medication for his reported symptoms and had “improved control” of his 17 depression. Tr. 254. On June 27, 2011, Mr. Duncan stated that Plaintiff had 18 19 20 21 22 1 A GAF of 30-21 is characterized as: “Behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; 23 no job, home, or friends).” Diagnostic and Statistical Manual of Mental Disorders 24 34 (4th ed. 1994). However, the DSM-V has “recommended that the GAF be 25 dropped . . . for several reasons, including its conceptual lack of clarity (i.e., 26 including symptoms, suicide risk, and disabilities in its descriptors) and 27 questionable psychometrics in routine practice.” Diagnostic and Statistical Manual 28 of Mental Disorders, 16 (5th ed. 2013). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 started taking Zoloft for his depressive symptoms two months prior to the visit and 2 reported the medication had been effective for him. Tr. 255. It was noted on exam 3 that there was “[n]o unusual anxiety or evidence of depression.” Tr. 256. On July 4 22, 2011, Mr. Duncan indicated “Zoloft has been effective for depression. [He] 5 feels this is [the] right dose for him.” Tr. 257. On August 12, 2011, Plaintiff was 6 diagnosed with depression, given a GAF score of 60,2 and continued on the 7 treatment plan previously prescribed. Tr. 261-262. On September 14, 2011, 8 Plaintiff presented complaining of depression, irritability and anger, Tr. 264; 9 however, on September 23, 2011, Plaintiff was seen by Mr. Duncan with no 10 mention of depressive symptoms, Tr. 267. On October 3, 2011, and November 4, 11 2011, CHAS chart notes indicate diagnoses of depression and bipolar disorder. Tr. 12 270, 272. On November 11, 2011, Mr. Duncan noted Plaintiff had been taking 13 Celexa, which Plaintiff reported had helped his depressive symptoms. Tr. 274. On 14 November 18, 2011, Plaintiff reported he had been unable to contact his daughter 15 on her birthday, learned his parents were going to move to Afghanistan with his 16 children for a year, and was feeling more depressed with his medication not 17 seeming to be working. Tr. 276. 18 On March 26, 2012, Plaintiff was evaluated by Dennis R. Pollack, Ph.D. Tr. 19 280-289. Plaintiff indicated he did not think he could work because of depression 20 and hip pain. Tr. 281. He described his depression as resulting in his not wanting 21 to do anything or be around anyone. Tr. 281-282. Plaintiff reported he visits with 22 friends three to four times a month; does household chores like washing dishes, 23 sweeping and washing clothes; plays video games; uses Facebook; and reads. Tr. 24 282. Dr. Pollack indicated the results of the MMPI-2 gave Plaintiff an elevated F- 25 26 2 A GAF of 60-51 reflects: Moderate symptoms or moderate difficulty in 27 social, occupational, or school functioning. Diagnostic and Statistical Manual of 28 Mental Disorders 32 (4th ed. 1994). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 scale at T, suggesting he has a high number of unusual experiences or that he was 2 exaggerating his difficulties. Tr. 284. The results, however, did not invalidate the 3 testing. Tr. 284. Personality testing revealed “an individual who is anxious, tense, 4 nervous and depressed. He worries excessively and has difficulty controlling his 5 anxiety. He tends to overreact to minor stress.” Tr. 285. Dr. Pollack diagnosed 6 Major Depressive Disorder; Pain Disorder Associated with Both Psychological 7 Factors and General Medical Condition; Alcohol Dependence, in remission; 8 Cannabis Dependence, in remission; and Rule Out Personality Disorder, and gave 9 Plaintiff a GAF score of 55, indicative of moderate symptoms. Tr. 285. On a 10 Mental Medical Source Statement form, Dr. Pollack checked boxes indicating 11 Plaintiff’s ability to perform activities within a schedule, maintain regular 12 attendance, and be punctual within customary tolerances and ability to complete a 13 normal workday and workweek without interruptions from psychologically based 14 symptoms and to perform at a consistent pace without an unreasonable number and 15 length of rest periods were markedly limited. Tr. 287. 16 Margaret Moore, Ph.D., reviewed the record and testified as a medical 17 expert at the administrative hearing held on March 29, 2012. Tr. 46-55. Dr. 18 Moore indicated the record reflected only two exams, one completed by Dr. 19 Pollack and one completed by Dr. Charboneau, as well as contacts with a social 20 worker at CHAS. Tr. 47, 49. She stated that both exams resulted in a diagnosis of 21 major depressive disorder, which Dr. Moore apparently agreed with. Tr. 47-48, 22 52. Dr. Moore opined that, overall, Plaintiff is someone who has encountered 23 some significant situational problems, such as a move to Washington State, no job, 24 no money, separation from his significant other in their respective shelter settings 25 and an attempt to get on his feet, but the efforts to get back on his feet have been 26 mostly about trying to receive entitlements, as opposed to getting work or 27 vocational rehabilitation. Tr. 48-49. 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 With respect to Dr. Charboneau’s exam, Dr. Moore indicated the GAF score 2 of 28 given by Dr. Charboneau did not make sense, given Plaintiff’s functioning at 3 the time. Tr. 49-50. Dr. Moore stated that someone with this level of a GAF score 4 “would undoubtedly be hospitalized.” Tr. 49. As to Dr. Pollack’s examination, 5 Dr. Moore testified the content of the actual evaluation did not speak to the 6 extreme limitation ratings found by Dr. Pollack. Tr. 50. She noted Plaintiff 7 reported to Dr. Pollack that he has friends, sees his friends, is able to do his chores, 8 goes to the library, plays video games and performs activities of his own choosing 9 and persists at those which belied the marked impairments found by Dr. Pollack. 10 Tr. 50. In addition, Dr. Moore questioned Dr. Pollack’s technique on exam and 11 indicated the MMPI completed by Dr. Pollack, while not invalid, produced scores 12 that were “elevated fairly significantly.” Tr. 50-51. Dr. Moore opined Plaintiff 13 had no limitations on his activities of daily living, mild to moderate limitations in 14 social functioning, no to mild limitations on concentration, persistence and pace, 15 and no episodes of decompensation. Tr. 52-53. 16 John Arnold, Ph.D., completed a psychological/psychiatric evaluation form 17 on April 10, 2012. Tr. 298-300. Dr. Arnold diagnosed Major Depressive 18 Disorder, Recurrent Mild to Moderate and Personality Disorder NOS with Cluster 19 B Features and gave Plaintiff a GAF score of 54. Tr. 298. Plaintiff reported to Dr. 20 Arnold that the medication Zoloft helped him feel “normal over half the time.” Tr. 21 299. Dr. Arnold opined that Plaintiff is capable of understanding and carrying out 22 simple instructions, can concentrate for short periods of time, can complete simple 23 tasks without close supervision and not disrupt others, would work best in 24 positions that have minimal interaction with others, can use the bus for 25 transportation, and can recognize hazards and take appropriate precautions. Id. 26 The ALJ’s RFC assessment indicates Plaintiff should have no more than 27 superficial contact with the general public, but includes no further limitations 28 stemming from his mental impairments. Tr. 20. In reaching this RFC ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 determination, the ALJ accorded “significant weight” to the opinions of the non- 2 examining medical expert, Dr. Moore. Tr. 24. The ALJ further specifically 3 rejected portions of the medical reports of Dr. Charboneau and Dr. Pollack based 4 entirely on the testimony of Dr. Moore. Tr. 23. However, as indicated above, 5 “[t]he opinion of a nonexamining physician cannot by itself constitute substantial 6 evidence that justifies the rejection of the opinion of either an examining physician 7 or a treating physician.” Lester, 81 F.3d at 830. The ALJ provides no basis, other 8 than the testimony of Dr. Moore, for discounting the opinions of Drs. Charboneau3 9 and Pollack.4 Tr. 23. Furthermore, the ALJ’s decision fails to mention the report 10 11 3 With regard to Dr. Charboneau, the ALJ stated as follows: “Margaret 12 Moore, Ph.D., who testified at the hearing as a medical expert, called into question 13 Dr. Charbonneau’s [sic] reported global assessment score, suggesting that a person 14 with a legitimate GAF score of 28 would have conditions that warrant 15 hospitalization. Dr. Moore opined that Dr. Charbonneau [sic] likely based his 16 conclusion on the claimant’s subjective complaints, since this was inconsistent 17 with his findings that the claimant regularly went to the library to read email, and 18 looked for internet job searches.” Tr. 23. 19 4 The ALJ again relied solely upon Dr. Moore’s testimony to discount Dr. 20 Pollack’s report: “At the hearing, Dr. Moore questioned the consistency of Dr. 21 Pollack’s mental medical source statement evaluating the claimant with marked 22 impairments in his ability to sustain work when his own findings indicated that the 23 claimant demonstrated that he could do chores, perform activities on his own and 24 could choose and persist in those activities. Dr. Moore also questioned the 25 significance of the testing since Dr. Pollack failed to indicate his protocol for 26 performing his testing. Dr. Moore further noted that the claimant had significantly 27 elevated MMPI scores suggestive of strong potential for exaggeration, though they 28 did not rise to the level to be invalidated.” Tr. 23. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 of Dr. Arnold and fails to indicate the weight accorded to Mr. Duncan. Tr. 23. 2 The ALJ erred by relying completely on the opinion of Dr. Moore, a nonexamining 3 medical professional, in assessing Plaintiff’s mental RFC. Consequently, the 4 ALJ’s assessment of Plaintiff’s mental functioning is not supported by substantial 5 record evidence in this case. 6 The undersigned notes the medical evidence of record appears to 7 demonstrate Plaintiff’s mental impairments do not result in disabling limitations. 8 However, Plaintiff’s mental RFC is an administrative finding, dispositive of the 9 case, which is reserved to the Commissioner and, by delegation of authority, to the 10 ALJ. SSR 96-5p. It is thus the responsibility of the ALJ, not this Court, to make a 11 RFC determination. Accordingly, Plaintiff’s mental RFC must be redetermined, 12 on remand, taking into consideration the opinions of the medical professionals 13 noted above, as well as any additional or supplemental evidence relevant to 14 Plaintiff’s claim for disability benefits. 15 CONCLUSION 16 Having reviewed the record and the ALJ’s conclusions, the undersigned 17 finds the ALJ’s decision is not based upon the proper legal standards and is not 18 supported by substantial evidence in the record. The Court has the discretion to 19 remand the case for additional evidence and finding or to award benefits. Smolen 20 v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). The Court may award benefits if 21 the record is fully developed and further administrative proceedings would serve 22 no useful purpose. Id. Remand is appropriate when additional administrative 23 proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 24 Cir. 1989). In this case, as indicated above, further development is necessary to 25 remedy defects and for a proper determination to be made. 26 On remand, the ALJ shall reassess Plaintiff’s mental RFC, taking into 27 consideration Dr. Charboneau’s December 8, 2010, report, Tr. 240-244; the 2011 28 chart notes from CHAS, Tr. 245-276; Dr. Pollack’s March 26, 2012, evaluation, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 Tr. 280-289; the evaluation completed by Dr. Arnold on April 10, 2012, Tr. 298- 2 300; and any additional medical evidence relevant to Plaintiff’s claim for disability 3 benefits. The ALJ shall also elicit the testimony of a medical expert at a new 4 administrative hearing to assist the ALJ in formulating a new mental RFC 5 determination. The ALJ shall present Plaintiff’s new RFC assessment to a 6 vocational expert at the new hearing to determine if Plaintiff is capable of 7 performing his past relevant work or any other work existing in sufficient numbers 8 in the national economy. 9 10 11 12 13 14 15 Accordingly, IT IS ORDERED: 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is GRANTED, in part. 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this order. 16 4. An application for attorney fees may be filed by separate motion. 17 The District Court Executive is directed to file this Order and provide a copy 18 to counsel for Plaintiff and Defendant. Judgment shall be entered in favor of 19 PLAINTIFF and the file shall be CLOSED. 20 DATED January 22, 2014. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13

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