Guillermo Alvarez Jr. v. Michael J. Astrue, No. 2:2010cv08284 - Document 24 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (am)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GUILLERMO ALVAREZ, JR., 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 10-8284-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On November 10, 2010, plaintiff Guillermo Alvarez, Jr. filed a complaint 22 against defendant Michael J. Astrue, seeking a review of a denial of Disability 23 Insurance Benefits ( DIB ). Docket No. 3. Both plaintiff and defendant have 24 consented to proceed for all purposes before the Magistrate Judge pursuant to 28 25 U.S.C. § 636(c). Docket Nos. 19, 21. 26 Pursuant to the November 16, 2010 case management order, the parties 27 submitted a detailed, 17-page joint stipulation for decision on June 9, 2011. Docket 28 No. 23. The court deems the matter suitable for adjudication without oral argument. 1 In sum, having carefully studied, inter alia, the parties joint stipulation and 2 the administrative record, the court concludes that, as detailed herein, the 3 Administrate Law Judge ( ALJ ) erred in evaluating the medical evidence, and 4 inappropriately discounted plaintiff s credibility and his subjective complaints. The 5 court therefore remands this matter to the Commissioner in accordance with the 6 principles and instructions enunciated in this Memorandum Opinion and Order. 7 II. 8 FACTUAL AND PROCEDURAL BACKGROUND 9 Plaintiff, who was 42 years old on the date of his February 2, 2009 10 administrative hearing, has a ninth grade education and training in photography. See 11 Administrative Record ( AR ) at 24, 27, 28, 52. His past relevant work includes 12 employment as an automobile detailer, courier delivery driver, and photographer. 13 Id. at 52. 14 On August 22, 2007, plaintiff filed an application for DIB, alleging that he has 15 been disabled since July 27, 2005 due to hypertension, high blood pressure, a back 16 injury, and dyslexia. See AR at 65, 101-04. Plaintiff s application was denied 17 initially, after which he filed a request for a hearing. Id. at 61, 65-70, 71-72. 18 On February 2, 2009, plaintiff, represented by counsel, appeared and testified 19 at a hearing before the ALJ. AR at 24-50, 52-53. The ALJ also heard testimony 20 from Jeanine Metildi, a vocational expert ( VE ). Id. at 50-59. 21 On February 19, 2009, the ALJ denied plaintiff s request for benefits. AR at 22 14-21. Applying the well-known five-step sequential evaluation process, the ALJ 23 found, at step one, that plaintiff has not engaged in substantial gainful activity since 24 his alleged onset date of disability. Id. at 16. 25 At step two, the ALJ found that plaintiff suffers from severe impairments 26 consisting of status post right knee arthroscopic surgery 27 (chondroplasty/debridement and meniscectomy); and lower back pain. AR at 16 28 (emphasis omitted). 2 1 At step three, the ALJ determined that the evidence does not demonstrate that 2 plaintiff s impairments, either individually or in combination, meet or medically 3 equal the severity of any listing set forth in the Social Security regulations.1/ AR at 4 17. The ALJ then assessed plaintiff s residual functional capacity ( RFC )2/ and 5 6 determined that he can perform light work with the following limitations: 7 occasionally lift up to 20 pounds and frequently lift up to 10 pounds ; stand or 8 walk for approximately 4 hours per 8-hour workday, with normal breaks; and sit for 9 approximately 4 hours per 8-hour workday, with normal breaks ; occasionally 10 operate foot controls with the right lower extremity ; cannot climb ladders, ropes or 11 scaffolds, but can occasionally climb ramps or stairs ; occasionally stoop, but 12 cannot kneel, crouch or crawl ; can use a hand-held assistive device when walking 13 on uneven terrain or ascending and descending slopes ; must avoid concentrated 14 exposure to extreme vibration and all exposure to hazardous machinery, unprotected 15 heights, or other high risk, hazardous or unsafe conditions. AR at 17 (emphasis 16 omitted). The ALJ found, at step four, that plaintiff is unable to perform any past 17 18 relevant work. AR at 19. At step five, based upon plaintiff s vocational factors and RFC, the ALJ found 19 20 that there [are] jobs that exist[] in significant numbers in the national economy that 21 [plaintiff can] perform. AR at 20 (emphasis omitted). Thus, the ALJ concluded 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007). 3 1 that plaintiff was not suffering from a disability as defined by the Social Security 2 Act. Id. at 14, 21. 3 Plaintiff filed a timely request for review of the ALJ s decision, which was 4 denied by the Appeals Council. AR at 1-3, 9. The ALJ s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 12 But if the court determines that the ALJ s findings are based on legal error or are not 13 supported by substantial evidence in the record, the court may reject the findings and 14 set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 15 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 16 Substantial evidence is more than a mere scintilla, but less than a 17 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 18 evidence which a reasonable person might accept as adequate to support a 19 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 20 at 459. To determine whether substantial evidence supports the ALJ s finding, the 21 reviewing court must review the administrative record as a whole, weighing both 22 the evidence that supports and the evidence that detracts from the ALJ s 23 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 24 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 25 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 26 evidence can reasonably support either affirming or reversing the ALJ s decision, 27 the reviewing court may not substitute its judgment for that of the ALJ. Id. 28 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 4 1 IV. 2 ISSUES PRESENTED 3 Two disputed issues are presented for decision here: 4 (1) whether the ALJ properly evaluated the medical evidence; and 5 (2) whether the ALJ properly evaluated plaintiff s credibility and subjective 6 symptoms. Joint Stipulation ( JS ) at 3-5, 5-11, 11-12, 12, 12-15, 15. 7 V. 8 DISCUSSION 9 10 A. The ALJ Erred in Evaluating the Medical Evidence Plaintiff asserts that the ALJ erred in failing to find that [plaintiff] also has 11 severe impairments of a right wrist disorder, obesity, a heart condition[,] and 12 hypertension. JS at 3. Plaintiff further suggests that the ALJ s errors in evaluating 13 the medical evidence resulted in error in determining plaintiff s RFC. Id. at 5. 14 The threshold inquiry at step two is whether or not a claimant is suffering 15 from a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii). The step two inquiry is 16 defined as a de minimis screening device to dispose of groundless claims. 17 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (quoting Smolen v. 18 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). At step two of the five-step sequential 19 inquiry, the Commissioner determines whether the claimant has a medically severe 20 impairment or combination of impairments. Smolen, 80 F.3d at 1289-90 (citation 21 omitted). Although plaintiff claims the ALJ erred in finding plaintiff s only severe 22 impairments were to his knee and back (see JS at 5), any error in so limiting the 23 findings of severe impairments would be harmless, given that the ALJ ruled in 24 plaintiff s favor at step two. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 25 2005) (any error the ALJ committed at step two was harmless because the step was 26 resolved in claimant s favor); Taylor v. Astrue, 2010 WL 2773337, at *3 (D. Or. 27 2010) (any error in failing to designate plaintiff s additional impairments as not 28 severe did not prejudice him at step two, as step two was resolved in plaintiff s favor 5 1 because the ALJ found plaintiff had demonstrated several impairments necessary to 2 satisfy step two). 3 More critical is plaintiff s apparent contention that the ALJ erred in assessing 4 plaintiff s RFC, with the gaps in his findings leaving it unclear as to how the ALJ 5 arrived at his assessment. JS at 5. In determining a claimant s RFC, the ALJ must 6 consider all the relevant evidence, including the diagnoses, treatment, observations 7 by the treating physicians, medical records, and relevant non-medical evidence. See 8 Social Security Ruling ( SSR ) 96-5,3/ 1996 WL 374183, at *5; 20 C.F.R. 9 § 404.1545(a). Plaintiff argues that records from treating physician Simon Lavi, D.O., 10 11 submitted by plaintiff on February 4, 2009, demonstrated left shoulder impingement 12 syndrome and right wrist sprain with carpal tunnel syndrome, and that these medical 13 findings were not properly evaluated by the ALJ. See JS at 4. The court agrees. 14 Although these diagnoses are not new and were made by Dr. Lavi in records that 15 were reviewed by examining internist Rocely Ella-Tamayo, M.D. and the non16 examining State Agency evaluator,4/ the ALJ erred in failing to provide any legally 17 sufficient reasons for disregarding Dr. Lavi s opinion. In evaluating medical opinions, Ninth Circuit case law and Social Security 18 19 regulations distinguish among the opinions of three types of physicians: (1) those 20 who treat the claimant (treating physicians); (2) those who examine but do not treat 21 22 23 24 25 26 27 3/ The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 4/ See AR at 183, 187, 191, 195, 200, 205-06, 216, 220, 224, 228-29, 233, 237, 28 241, 245, 249, 253, 257, 260, 270, 280, 299-300, 310-11. 6 1 the claimant (examining physicians); and (3) those who neither examine nor treat the 2 claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1996); see also 20 C.F.R. § 404.1527(d) (prescribing the respective weight to be 4 given the opinion of treating sources and examining sources). As a general rule, 5 more weight should be given to the opinion of a treating source than to the opinion 6 of doctors who do not treat the claimant. Lester, 81 F.3d at 830; accord Benton ex 7 rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003). This is so because a 8 treating physician is employed to cure and has a greater opportunity to know and 9 observe the patient as an individual. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 10 Cir. 1987). The opinion of an examining physician is, in turn, entitled to greater 11 weight than the opinion of a nonexamining physician. Lester, 81 F.3d at 830. 12 Where the treating physician s opinion is not contradicted by another doctor, 13 it may be rejected only for clear and convincing reasons. Benton, 331 F.3d at 14 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ( While the 15 ALJ may disregard the opinion of a treating physician, whether or not controverted, 16 the ALJ may reject an uncontroverted opinion of a treating physician only for clear 17 and convincing reasons. ). Even if the treating doctor s opinion is contradicted by 18 another doctor, the [ALJ] may not reject this opinion without providing specific and 19 legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d 20 at 830 (internal quotation marks and citation omitted); accord Reddick, 157 F.3d at 21 725. The ALJ can meet the requisite specific and legitimate standard by setting out 22 a detailed and thorough summary of the facts and conflicting clinical evidence, 23 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 24 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted). 25 Here, in his decision, although the ALJ stated that he gave substantial weight 26 to Dr. Lavi s opinion, he implicitly rejected Dr. Lavi s findings with respect to 27 plaintiff s shoulder and wrist without actually stating he was doing so. The ALJ 28 erred by failing to provide any reason, let alone a specific and legitimate one, for 7 1 disregarding Dr. Lavi s opinion regarding plaintiff s right wrist disorder and 2 shoulder impairment. See Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988) ( We 3 find nothing in the ALJ s decision which indicates why [the treating physician s] 4 medical findings, reports, and opinion were disregarded. Because the ALJ did not 5 state reasons based on substantial evidence, we reverse the decision to deny 6 benefits. ). 7 Having determined that the ALJ erred in providing no reasons for implicitly 8 rejecting the treating physician s opinion regarding plaintiff s wrist and shoulder 9 impairments, the court will not reach the question of whether the ALJ also erred in 10 evaluating the medical evidence of plaintiff s heart disease, hypertension, and 11 obesity. Although the ALJ clearly did address and consider the medical evidence 12 with respect to these latter medical problems (see AR at 18-19), the court need not 13 decide whether the ALJ s evaluation of these problems was adequate. For the 14 reasons discussed below, on remand the ALJ should reassess all the medical 15 opinions in the record. 16 17 18 B. The ALJ Improperly Discounted Plaintiff s Credibility and Subjective Complaints Plaintiff argues that the ALJ failed to properly assess his credibility and 19 improperly disregarded his allegations of subjective symptoms. See JS at 12,15. 20 Specifically, plaintiff maintains that the ALJ failed to provide legally sufficient 21 reasons for rejecting plaintiff s testimony. Id. at 12. The court agrees. 22 Plaintiff carries the burden of producing objective medical evidence of his or 23 her impairments and showing that the impairments could reasonably be expected to 24 produce some degree of the alleged symptoms. Benton, 331 F.3d at 1040. But once 25 a plaintiff meets that burden, medical findings are not required to support the alleged 26 severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); 27 see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ( [A] claimant 28 need not present clinical or diagnostic evidence to support the severity of his pain. 8 1 (internal citation omitted)). 2 Under these circumstances, an ALJ can then reject a plaintiff s subjective 3 complaint only upon (1) finding evidence of malingering, or (2) expressing clear 4 and convincing reasons for doing so. Benton, 331 F.3d at 1040. The ALJ may 5 consider the following factors in weighing a plaintiff s credibility: (1) his or her 6 reputation for truthfulness; (2) inconsistencies either in the plaintiff s testimony or 7 between the plaintiff s testimony and his or her conduct; (3) his or her daily 8 activities; (4) his or her work record; and (5) testimony from physicians and third 9 parties concerning the nature, severity, and effect of the symptoms of which she 10 complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 11 Here, the ALJ did not find evidence of malingering. See generally AR at 14- 12 21. Thus, in rejecting plaintiff s credibility the ALJ must have articulated clear and 13 convincing reasons. See Benton, 331 F.3d at 1040. The court is persuaded that the 14 ALJ failed to provide clear and convincing reasons for rejecting plaintiff s 15 credibility and subjective complaints. 16 First, the ALJ erred to the extent he rejected plaintiff s credibility based on a 17 lack of objective medical evidence. See AR at 18-19. Plaintiff provided sufficient 18 medical evidence of underlying impairments that were reasonably likely to cause the 19 symptoms he described. For instance: 20 1. A medical evaluation note, dated November 6, 2006, noted plaintiff s 21 shoulder, wrist, knee, ankle, and back pain, and opined that: plaintiff s low back 22 problem preclude[s plaintiff] from heavy lifting and frequent ending and stooping ; 23 plaintiff s right knee impairment precludes running, jumping, performing more 24 than occasional squatting or kneeling, or walking in precarious situations ; plaintiff 25 should not perform rep[etitious] climbing or descending of stairs, nor should he 26 climb ladders ; plaintiff should not walk over irregular terrain ; and the right knee 27 condition requires the use of a cane and a knee support. AR at 215. 28 2. A magnetic resonance imaging ( MRI ) of plaintiff s lumbar spine on 9 1 June 8, 2007 revealed [b]road-based disc protrusion at L4-L5 measuring 3 mm, 2 which causes mild narrowing of the left lateral recess. AR at 187. The MRI also 3 revealed an [a]nnular tear in the left side of the L5-S1 disc with posterior broad4 based disc protrusion versus diffuse posterior disc bulge. Id. 5 3. An internal medicine evaluation note, dated April 1, 2008, diagnosed 6 plaintiff with hypertension, status post arthroscopic surgery right knee with residual 7 pain, low back pain, and obesity. AR at 303. 8 4. A treatment note, dated August 8, 2007, diagnosed plaintiff with 9 hypertensive heart disease. AR at 289. The note also indicated that plaintiff s blood 10 pressure is uncontrolled due, in part, to poor medical compliance and in part due to 11 pain from his knee surgery. Id. 12 Because plaintiff produced sufficient medical evidence of underlying 13 impairments that are likely to cause plaintiff s limited strength, difficulty in 14 standing, walking or sitting, the ALJ erred to the extent he rejected plaintiff s 15 credibility based upon a lack of objective findings to support his allegations. See 16 Bunnell, 947 F.2d at 345 ( [O]nce the claimant produces objective medical evidence 17 of an underlying impairment, [the ALJ] may not reject a claimant s subjective 18 complaints based solely on a lack of objective medical evidence to fully corroborate 19 the alleged severity of pain. (citation omitted)); SSR 96-7P, 1996 WL 374186, at *1 20 ( An individual s statements about the intensity and persistence of pain or other 21 symptoms or about the effect the symptoms have on his or her ability to work may 22 not be disregarded solely because they are not substantiated by objective medical 23 evidence. ). 24 Second, the ALJ s rejection of plaintiff s credibility based on his daily 25 activities is not supported by substantial evidence. The ALJ found that plaintiff s 26 subjective complaints are undermined by his ability to attend[] to his own personal 27 care needs, walk[] his children to school, do[] light chores. AR at 19. But plaintiff 28 explained that he only walks his kids from their house to the bus stop at the corner, 10 1 which is approximately 50 yards from his house. Id. at 44, 129. Plaintiff also 2 explained that he has difficulty taking care of his own personal hygiene and 3 requires his wife s help to bathe. Id. at 44. Moreover, although plaintiff stated that 4 he is capable of doing light chores around the house, he also stated that he is only 5 able to do it a few minutes at a time. Id. at 129. Thus, the ALJ s paraphrasing of 6 plaintiff s daily activities is not entirely accurate. See Reddick, 157 F.3d at 722-23 7 ( [T]he ALJ developed his evidentiary basis by not fully accounting for the context 8 of materials or all parts of the testimony and reports. His paraphrasing of record 9 material is not entirely accurate regarding the content or tone of the record. ); 10 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) ( Although it is within the 11 power of the [Commissioner] to make findings . . . and to weigh conflicting 12 evidence, he cannot reach a conclusion first, and then attempt to justify it by 13 ignoring competent evidence in the record that suggests an opposite result. (internal 14 citation omitted)). 15 Further, the ALJ fails to demonstrate how plaintiff s ability to perform these 16 daily activities translates into an ability to do activities that are transferrable to a 17 work setting. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ 18 errs in failing to make a finding to the effect that ability to perform daily activities 19 translated into the ability to perform appropriate work); Reddick, 157 F.3d at 722 20 (only if a plaintiff s level of activity is inconsistent with her alleged limitations will 21 these activities have any bearing on claimant s credibility); see also Vertigan v. 22 Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ( the mere fact that a plaintiff has 23 carried on certain daily activities, such as grocery shopping, driving a car, or limited 24 walking for exercise, does not in any way detract from her credibility as to her 25 overall disability ). 26 Defendant argues the ALJ found that plaintiff s credibility is undermined by 27 his failure to follow treatment advice; specifically, plaintiff was noncompliant with 28 his blood pressure medication which contributed to his heart condition. See JS at 7. 11 1 But although the ALJ mentioned plaintiff s poor medical compliance (AR at 18), he 2 did not clearly rely on this as a reason to reject plaintiff s credibility. The court s 3 review is limited to the reasons actually provided by the ALJ in his decision for 4 rejecting plaintiff s credibility. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 5 ( We review only the reasons provided by the ALJ in the disability determination 6 and may not affirm the ALJ on a ground upon which he did not rely. (citation 7 omitted)). In any event, to the extent the ALJ relied on this reason, the ALJ s 8 conclusion does not meet the clear and convincing standard. A claimant s failure to 9 seek treatment due to inability to pay cannot support an adverse credibility 10 determination. Orn, 495 F.3d at 638. A review of the record reveals that the sole 11 reason plaintiff was noncompliant with his medication for high blood pressure was 12 due to his inability to pay for it. AR at 48-49. 13 VI. 14 REMAND IS APPROPRIATE 15 The decision whether to remand for further proceedings or reverse and award 16 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 17 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further 18 proceedings, or where the record has been fully developed, it is appropriate to 19 exercise this discretion to direct an immediate award of benefits. See Benecke v. 20 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 21 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings turns 22 upon their likely utility). But where there are outstanding issues that must be 23 resolved before a determination can be made, and it is not clear from the record that 24 the ALJ would be required to find plaintiff disabled if all the evidence were properly 25 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 26 F.3d at 1179-80. 27 Here, as set out above, remand is required because the ALJ erred in failing to 28 properly evaluate both the medical evidence and plaintiff s credibility. On remand, 12 1 the ALJ shall reassess the medical opinions in the record and provide sufficient 2 reasons under the applicable legal standard for rejecting any portion of the medical 3 opinions. The ALJ shall also reconsider plaintiff s subjective complaints with 4 respect to his physical impairments and the resulting limitations, and either credit 5 plaintiff s testimony or provide clear and convincing reasons supported by 6 substantial evidence for rejecting them. In addition, if necessary, the ALJ shall 7 obtain additional information and clarification regarding plaintiff s functional 8 limitations. The ALJ shall then proceed through steps four and five to determine 9 what work, if any, plaintiff is capable of performing. 10 VII. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING 13 the decision of the Commissioner denying benefits, and REMANDING the matter to 14 the Commissioner for further administrative action consistent with this decision. 15 16 DATED: October 19, 2011 17 ____________________________________ 18 HON. SHERI PYM UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 13
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