Mabel I Ponce v. Michael J Astrue, No. 2:2011cv02380 - Document 20 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jean P Rosenbluth, REVERSING COMMISSIONER'S DECISION AND REMANDING FOR FURTHER PROCEEDINGS. (See document for details.) IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. (rla)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 MABEL I. PONCE, 13 Plaintiff, 14 15 16 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-2380 JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER S DECISION AND REMANDING FOR FURTHER PROCEEDINGS 18 19 I. PROCEEDINGS 20 Plaintiff seeks review of the Commissioner s final decision 21 denying her application for Social Security Disability Insurance 22 Benefits ( DIB ). The parties filed a Joint Stipulation on January 3, 23 2012.1 The Court has taken the Joint Stipulation under submission 24 without oral argument. For the reasons stated below, the 25 Commissioner s decision is reversed and this matter is remanded for 26 27 28 1 Although the face page of the Joint Stipulation is file-stamped E-Filed Jan 3, 2011, that was before the action was filed. The docket sheet reflects the correct 2012 date. 1 further proceedings. 2 II. 3 BACKGROUND Plaintiff was born on August 14, 1953. (Administrative Record 4 ( AR ) 33, 106.) She completed high school in El Salvador and speaks 5 limited English. (AR 24, 33-34.) 6 in 1974 and worked as a sample maker at a sewing factory until January 7 1, 2002. 8 activity from that date through her date last insured, March 31, 2006. 9 (AR 34, 106.) 10 (AR 33-34.) Plaintiff came to the United States She has not engaged in substantial gainful On March 31, 2008, Plaintiff filed an application for DIB, 11 alleging that she had been unable to work since January 1, 2002, 12 because of several medical problems, including foot pain, knee pain, 13 lumbar spine disorder, rheumatoid arthritis, and fibromyalgia. 14 17, 19, 106.) 15 a hearing before an Administrative Law Judge ( ALJ ). 16 was held on September 17, 2009, at which time Plaintiff appeared with 17 a representative and testified on her own behalf. 18 medical experts and a vocational expert also testified. 19 On November 2, 2009, the ALJ found that Plaintiff was not disabled 20 within the meaning of the Social Security Act. 21 January 26, 2011, the Appeals Council denied Plaintiff s request for 22 review of the ALJ s decision. 23 III. STANDARD OF REVIEW 24 (AR After Plaintiff s application was denied, she requested (AR 1-3.) (AR 58.) (AR 29-47.) It Two (AR 38-46.) (AR 17-25.) On This action followed. Pursuant to 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 26 findings and decision should be upheld if they are free of legal error 27 and are supported by substantial evidence based on the record as a 28 whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 2 1 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 2 746 (9th Cir. 2007). 3 reasonable person might accept as adequate to support a conclusion. 4 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 5 1035 (9th Cir. 2007). 6 preponderance. 7 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court must 9 review the administrative record as a whole, weighing both the 10 evidence that supports and the evidence that detracts from the 11 Commissioner s conclusion. 12 Cir. 1996). 13 or reversing, the reviewing court may not substitute its judgment 14 for that of the Commissioner. 15 IV. 16 Substantial evidence means such evidence as a It is more than a scintilla but less than a Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. To determine whether Reddick v. Chater, 157 F.3d 715, 720 (9th If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are disabled for purposes of receiving Social Security 17 benefits if they are unable to engage in any substantial gainful 18 activity due to a physical or mental impairment that is expected to 19 result in death or which has lasted, or is expected to last, for a 20 continuous period of at least 12 months. 21 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 42 U.S.C. § 423(d)(1)(A); 22 A. The five-step evaluation process 23 The Commissioner (or ALJ) follows a five-step sequential 24 evaluation process in assessing whether a claimant is disabled. 25 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 26 Cir. 1995) (as amended Apr. 9, 1996). 27 Commissioner must determine whether the claimant is currently engaged 28 in substantial gainful activity; if so, the claimant is not disabled 3 20 In the first step, the 1 and the claim is denied. 2 engaged in substantial gainful activity, the second step requires the 3 Commissioner to determine whether the claimant has a severe 4 impairment or combination of impairments significantly limiting her 5 ability to do basic work activities; if not, a finding of 6 nondisability is made and the claim is denied. 7 If the claimant has a severe impairment or combination of 8 impairments, the third step requires the Commissioner to determine 9 whether the impairment or combination of impairments meets or equals 10 an impairment in the Listing of Impairments ( Listing ) set forth at 11 20 C.F.R. Part 404, Subpart P, Appendix 1; if so, disability is 12 established and benefits are awarded. 13 claimant s impairment or combination of impairments does not meet or 14 equal an impairment in the Listing, the fourth step requires the 15 Commissioner to determine whether the claimant has sufficient residual 16 functional capacity ( RFC )2 to perform her past work; if so, the 17 claimant is not disabled and the claim must be denied. 18 § 404.1520(a)(4)(iv). 19 is unable to perform past relevant work. 20 If the claimant meets that burden, a prima facie case of disability is 21 established. 22 relevant work, the Commissioner then bears the burden of establishing 23 that the claimant is not disabled because she can perform other 24 substantial gainful work in the economy. 25 determination comprises the fifth and final step in the sequential Id. § 404.1520(a)(4)(I). If the claimant is not § 404.1520(a)(4)(ii). § 404.1520(a)(4)(iii). If the The claimant has the burden of proving that she Drouin, 966 F.2d at 1257. If that happens or if the claimant has no past § 404.1520(a)(4)(v). That 26 27 28 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 analysis. § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 2 966 F.2d at 1257. 3 B. The ALJ s application of the five-step process 4 At step one, the ALJ found that Plaintiff did not engage in any 5 substantial gainful activity from January 1, 2002, the date of the 6 onset of her alleged disability, through March 31, 2006, her date last 7 insured. 8 the severe impairments of foot pain; knee pain; lumbar spine 9 disorder; rheumatoid arthritis and fibromyalgia. 10 (AR 19.) At step two, the ALJ concluded that Plaintiff had (Id.) At step three, the ALJ determined that Plaintiff s impairments 11 did not meet or equal any of the impairments in the Listing. (AR 21.) 12 At step four, the ALJ found that through the date last insured, 13 Plaintiff had the RFC to perform a limited range of light work ;3 14 specifically, she could lift and carry up to 20 pounds occasionally 15 and 10 pounds frequently; stand and walk up to 4 hours in an 8 hour 16 day; [] sit for up to 6 hours in an 8 hour day; . . . occasionally 17 climb ladders, ropes, and scaffolds; occasionally climb ramps and 18 stairs; and occasionally bend, stoop, or squat. 19 § 404.1567(b). 20 her past relevant work as a sample maker but acquired from that work 21 transferable sewing skills. (Id.); see 20 C.F.R. The ALJ concluded that Plaintiff was unable to perform (AR 23-24.) 22 23 24 25 26 27 28 3 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b). The regulations further specify that [e]ven though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles], and which mostly involves sitting but occasionally walking and standing too. § 404.1567(a)-(b). 5 1 At step five, the ALJ found, based on the VE s testimony and 2 application of the Medical Vocational Guidelines, that jobs existed in 3 significant numbers in the national economy that Plaintiff could 4 perform. 5 perform the work of sewing machine operator. 6 the ALJ determined that Plaintiff was not disabled. 7 V. 8 9 (AR 24-25.) The ALJ agreed with the VE that Plaintiff could (AR 25.) Accordingly, (Id.) DISCUSSION Plaintiff contends the ALJ improperly (1) rejected the opinion of her treating physician, Dr. Larry Ivancich (J. Stip. 6-14), and (2) 10 found that Plaintiff was not credible as to the severity of her 11 impairments (id. at 14-17). 12 13 14 A. Rejection of treating physician s opinion 1. Applicable law Three types of physicians may offer opinions in social security 15 cases: (1) those who treat[ed] the claimant (treating physicians); 16 (2) those who examine[d] but d[id] not treat the claimant (examining 17 physicians); and (3) those who neither examine[d] nor treat[ed] the 18 claimant (non-examining physicians). 19 treating physician s opinion is generally entitled to more weight than 20 the opinion of a doctor who examined but did not treat the claimant, 21 and an examining physician s opinion is generally entitled to more 22 weight than that of a nonexamining physician. 23 Lester, 81 F.3d at 830. A Id. The opinions of treating physicians are generally afforded more 24 weight than the opinions of nontreating physicians because treating 25 physicians are employed to cure and have a greater opportunity to know 26 and observe the claimant. 27 Cir. 1996). 28 on whether it was supported by sufficient medical data and was Smolen v. Chater, 80 F.3d 1273, 1285 (9th The weight given a treating physician s opinion depends 6 1 consistent with other evidence in the record. See 20 C.F.R. 2 § 404.1527(d)(2). 3 supported by medically acceptable clinical and laboratory diagnostic 4 techniques and was not inconsistent with the other substantial 5 evidence in the record, it should be given controlling weight and 6 should be rejected only for clear and convincing reasons. 7 Lester, 81 F.3d at 830; § 404.1527(d)(2). 8 opinion conflicts with other medical evidence, the ALJ must provide 9 specific and legitimate reasons for discounting the treating If a treating physician s opinion was well See When a treating physician s 10 doctor s opinion. 11 625, 632 (9th Cir. 2007). 12 treating physician s opinion include the [l]ength of the treatment 13 relationship and the frequency of examination as well as the nature 14 and extent of the treatment relationship between the patient and the 15 physician. Factors relevant to the evaluation of a § 404.1527(d)(2)(i)-(ii). 2. 16 Lester, 81 F.3d at 830; Orn v. Astrue, 495 F.3d Applicable facts In April and May 2003, podiatric surgeon Dr. Gabriel Halperin 17 18 treated Plaintiff for foot pain. 19 a calcaneal heel spur and plantar fasciitis, which were treated with a 20 series of four trigger-point injections in Plaintiff s right heel. 21 (Id.) 22 better but noted that her pain had returned when wearing tennis shoes 23 and later decreased again. 24 noted that Plaintiff s edema had decreased, she was using her heels, 25 and her range of movement was good. 26 (AR 167-71.) Dr. Halperin diagnosed After Plaintiff s third injection, she reported feeling 80% (AR 167.) At that time, Dr. Halperin (Id.) From July to October 2003, Plaintiff sought medical care at the 27 Bell-Clinica Familiar medical clinic for, among other things, fatigue 28 syndrome and abdominal pain. (AR 174-81.) 7 In a February 2004 1 follow-up at the Bell-Clinica Familiar, Plaintiff reported right- and 2 left-heel pain, and the doctor noted that she had possible spurs. 3 (AR 183.) 4 Between October 2004 and November 2005, podiatrist Larry Ivancich 5 treated Plaintiff for bilateral heel pain. (AR 184.) In an undated 6 one-paragraph letter, Dr. Ivanich summarized that treatment as 7 follows: 8 The patient was initially seen in the office on 10/06/2004 9 with chief complaint of pain in both heels, which she has had 10 for [a] number of months and years duration. 11 multiple treatments, orthotics, and injections without relief. 12 The patient was seen with excruciating pain. 13 seen over the course of a year multiple times and was given 14 injections, ankle braces, nerve conduction velocity studies, 15 and MRI preformed [sic] on the lumbar area. Physical therapy, 16 [sic] was given, which gave her very minimal to no relief. 17 MRI performed on 10/29/04 on her lumbar area revealed L5, S1 18 mild-to-moderate left neural foraminal narrowing secondary to 19 3 to 4 mm posterior disk bulge and facet hypertrophy. 20 patient has been unable to work due to severe pain in feet, 21 legs, and esteemed [sic] permanently disabled. 22 visit on 11/29/05, the patient still with pain in both feet 23 and legs with diagnosis of neuritis and pain. 24 (AR 184.) 25 Ivancich s treatment records. 26 The patient had The patient was The Upon her last The record contains the October 2004 MRI report but not Dr. (AR 197-98.) On March 22, 2006, shortly before Plaintiff s March 31, 2006 date 27 28 8 1 last insured, Dr. Susman4 noted that Plaintiff had been seeing Dr. 2 Ivancich for foot pain for the past two years with little results. 3 (AR 193.) 4 Tailors Bunion, Neuropathy, and (sciatica?), among other things. 5 (Id.) 6 of spurs, a new spur, and tailor s bunion; Dr. Susman diagnosed 7 calcaneal heel spurs and plantar fasciitis. Dr. Susman ordered foot x-rays and under Assessment wrote In April 2006, Dr. Susman noted that x-rays showed recurrence (AR 194.) 8 In December 2007, almost two years after Plaintiff s date last 9 insured, Dr. Solomon Forouzesh began treating Plaintiff for various 10 conditions. 11 osteoarthritis, spinal stenosis, discogenic disease, early rheumatoid 12 arthritis, fibromyalgia, neuropathy, gastritis, and bone spurs on both 13 feet. 14 was supported by laboratory reports dated December 2007 and May 2008 15 (AR 245, 264), and his findings of back and knee problems were 16 supported by MRIs conducted in December 2007 and January and February 17 2008 (AR 249-50, 254-55, 260). 18 Forouzesh opined that Plaintiff was in constant, continuous pain, that 19 she remains totally disabled and is unable to work, and that her 20 original disability dated to 2001. 21 January 2010 summary, Dr. Forouzesh completed two impairment 22 questionnaires that summarized Plaintiff s medical condition and 23 opined that she was unable to work. 24 (AR 236-96, 299-300.) (AR 278, 289, 299-300.) His diagnoses included diffuse His diagnosis of rheumatoid arthritis In a January 2010 report, Dr. (AR 299-300.) In addition to the (AR 278-85, 289-95, 299.) At the September 17, 2009 hearing, orthopedic surgeon Arthur 25 Brovender, a nonexamining physician, testified by phone that he had 26 reviewed the medical evidence and concluded that on or before March 27 28 4 The record does not appear to indicate Dr. Susman s first name. 9 1 31, 2006, Plaintiff could sit for six hours with breaks; because of 2 the complaints of foot pain and swelling pain, . . . she could stand 3 and walk for four hours in combination of the two; she couldn t go up 4 ropes, ladders and scaffolds; she could go up stairs and ramps 5 occasionally; she could lift 10 pounds frequently, 20 pounds 6 occasionally; she could bend, stoop and squat occasionally. 7 40-41.) 8 problems, foot problems, and heel spurs did not limit Plaintiff s 9 ability to use foot controls because the spur injections cured her of Dr. Brovender further testified that Plaintiff s knee 10 that. 11 could perform the job of sewing machine operator. 12 (AR 17, (AR 45.) Based on that testimony, the VE found that Plaintiff (AR 44-45.) The ALJ attributed great weight to Dr. Brovender s opinion, 13 noting that he is a board-certified orthopedic surgeon who had the 14 advantage of the longitudinal view of this case. 15 found Dr. Brovender s assessment of Plaintiff s physical limitations 16 to be reasonably consistent with the medical record and thus adopted 17 them as part of the RFC. 18 Dr. Forouzesh s assessments because they were completed over three 19 years after Plaintiff s date last insured, and because Dr. Forouzesh 20 did not start treating Plaintiff until almost two years after the date 21 last insured.5 22 that Plaintiff was permanently disabled as of November 2005 but 23 concluded that (AR 23.) (AR 23.) (AR 23.) The ALJ The ALJ gave little weight to The ALJ briefly noted Dr. Ivancich s opinion 24 other than this assertion, there is little evidence in the 25 record 26 significant impairment prior to the date of last insured. that the claimant s conditions resulted in any 27 5 28 Plaintiff does not challenge the ALJ s determination that Dr. Forouzesh s opinion should be given little weight. 10 1 Indeed, the claimant s pain appeared to be conservatively 2 treated at this time with medications such as Robaxin and 3 Lyrica . . . . 4 (AR 22.) 5 perform the occupation of sewing machine operator, concluding that 6 Plaintiff was not disabled as of the date last insured. 7 The ALJ also adopted the VE s finding that Plaintiff could 3. (AR 24-25.) Analysis 8 In concluding that Plaintiff could perform the occupation of 9 sewing machine operator, the ALJ rejected the opinion of treating 10 physician Dr. Ivancich and credited the opinion of nonexamining 11 physician Dr. Brovender. 12 between 2004 and 2005, Plaintiff suffered from neuritis and severe 13 pain in her feet and legs, which was not alleviated by various forms 14 of treatment. 15 Plaintiff was unable to work and permanently disabled. 16 Brovender, by contrast, reviewed the medical records and opined that 17 Plaintiff could perform limited light work, finding that she could use 18 foot controls because her foot pain was cured after the 2003 trigger 19 injections. 20 (AR 184.) (AR 22-25.) Dr. Ivancich stated that Dr. Ivancich opined that as a result, (Id.) Dr. (AR 40-41, 44-45.) The ALJ s rejection of Dr. Ivancich s findings and opinion did 21 not reach the level of specificity required to reject the opinion of a 22 treating physician. 23 1988) ( To say that medical opinions are not supported by sufficient 24 objective findings or are contrary to the preponderant conclusions 25 mandated by the objective findings does not achieve the level of 26 specificity our prior cases have required, even when the objective 27 factors are listed seriatim. ). 28 rejecting Dr. Ivancich s conclusion that Plaintiff was permanently See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. The ALJ provided two reasons for 11 1 disabled : (1) little evidence supported it and (2) her pain was 2 being treated conservatively with medications such as Robaxin and 3 Lyrica. 4 accorded great weight to the findings of Dr. Brovender, who did not 5 examine Plaintiff. (AR 22.) In rejecting the findings of Dr. Ivancich, the ALJ 6 The ALJ s first reason was not legally sufficient. 7 than a little evidence supported Dr. Ivancich s findings. 8 October 2004 MRI report showed mild to moderate left neural foraminal 9 narrowing secondary to 3-4 mm posterior disc bulge and facet joint (AR 198.) In fact, more The 10 hypertrophy. In addition, Dr. Ivancich stated that 11 Plaintiff suffered from neuritis and severe pain in feet, legs, 12 which was treated with orthotics, injections, and physical therapy. 13 (AR 184.) 14 Ivancich for two years for foot pain with little results. 15 Dr. Susman ordered x-rays, which showed a tailors bunion and heel 16 spurs. 17 tailors bunion, plantar fasciitis, and calcaneal heel spurs. 18 The ALJ did not adequately explain, as he was required to do, why that 19 medical evidence supported his view rather than Dr. Ivancich s. 20 Embrey, 849 F.2d at 421; see McAllister v. Sullivan, 888 F.2d 599, 602 21 (9th Cir. 1989) (finding that rejection of treating physician s 22 opinion on ground that it was contrary to clinical findings in record 23 did not specify why the ALJ felt the treating physician s opinion was 24 flawed ); see also Reddick, 157 F.3d at 725 (explaining that ALJ can 25 meet requisite standard for rejecting treating physician s opinion 26 deemed inconsistent with or unsupported by medical evidence by 27 setting out a detailed and thorough summary of the facts and 28 conflicting clinical evidence, stating his interpretation thereof, and Dr. Susman also noted that Plaintiff had been seeing Dr. (AR 193-94.) (AR 193.) Dr. Susman s assessment included neuropathy, 12 (Id.) 1 making findings ). 2 explaining why the medical evidence from years after Plaintiff s date 3 of last insured was not particularly relevant (AR 20, 22-23), a 4 finding that Plaintiff does not really dispute. 5 Indeed, for the most part, the ALJ focused on Moreover, the generalized reasons the ALJ provided to accord 6 great weight to Dr. Brovender s opinion consistency with the 7 record and his area of specialization also applied to Dr. Ivancich s 8 opinion. 9 generally agreed with those of the other treating doctors, Drs. Susman Dr. Ivancich s findings of foot pain and neuropathy 10 and Forouzesh, and Dr. Ivancich specialized in podiatry. 11 factors indicate that Dr. Ivancich s opinion was entitled to extra 12 weight. 13 meanwhile, never examined Plaintiff but based his opinion solely on 14 the medical records, and the ALJ determined that his findings were 15 only reasonably consistent with that record. 16 opinion should be given less weight than Dr. Ivancich s. 17 81 F.3d at 830; § 404.1527(d)(1)-(2). 18 See 20 C.F.R. § 404.1527(d)(4)-(5). Those Dr. Brovender, (AR 23.) Thus, his See Lester, Further, a nonexamining doctor s opinion cannot by itself 19 constitute substantial evidence and therefore cannot be the sole basis 20 for rejecting a treating doctor s opinion. 21 see also Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); 22 Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 23 other reason the ALJ provided for rejecting Dr. Ivancich s opinion was 24 that before the date last insured Plaintiff s pain was being treated 25 conservatively, with medication. 26 that in addition to the medication prescribed by Dr. Susman in 2006 27 (AR 193), Dr. Halperin treated Plaintiff with a series of trigger 28 injections in 2003 (AR 167-71) and Dr. Ivancich treated her with (AR 22.) 13 Lester, 81 F.3d at 831; The only But the evidence shows 1 orthotics, injections, and physical therapy from October 2004 to 2 November 2005 (AR 184). 3 treatments, Plaintiff continued to suffer severe pain in her feet and 4 legs. 5 doctor s opinion based on the erroneous conclusion that Plaintiff was 6 conservatively treated, with medication only. 7 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly rejected 8 treating doctor s conclusion that claimant was disabled when it 9 conflicted with, among other things, the doctor s prescribed 10 (AR 184.) Dr. Ivancich also noted that despite those Thus, the ALJ erred by rejecting the treating Cf. Rollins v. conservative course of treatment ). 11 The Commissioner argues that the ALJ reasonably assessed 12 Plaintiff s [RFC] to reasonably account for her foot impairment and 13 gave valid rationale for rejecting Dr. Ivancich s assertion that 14 Plaintiff was permanently disabled. 15 Commissioner is correct that the ALJ explained his ultimate finding of 16 nondisability; but as discussed above, that explanation did not 17 include sufficient reasons for rejecting Dr. Ivancich s opinion. 18 Compare 20 C.F.R. § 404.1527(e)(1) (determination of disability is an 19 issue reserved to Commissioner), with § 404.1527(d)(2) (Commissioner 20 will always give good reasons for the weight given to treating 21 source s opinion). 22 treating physician s opinion, the ALJ must give good reasons that are 23 supported by substantial evidence. 24 849 F.2d at 421. 25 (J. Stip. 12.) The As the Commissioner points out, when rejecting a (J. Stip. 11.) Accord Embrey, The ALJ erred by failing to do so here. The Commissioner offers additional reasons why the ALJ did not 26 err in rejecting Dr. Ivancich s opinion (J. Stip. 12-14), but the ALJ 27 did not articulate any of those reasons. 28 support the ALJ s evaluation. They therefore cannot See Connett v. Barnhart, 340 F.3d 871, 14 1 874 (9th Cir. 2003) (error for district court to affirm ALJ s 2 credibility decision based on evidence [ALJ] did not discuss and 3 specific facts or reasons ALJ did not assert). 4 The ALJ s failure to adequately discuss his reasons for rejecting 5 Dr. Ivancich s opinion was not harmless. Harmless error has been 6 found when it was clear from the record that an ALJ s error was 7 inconsequential to the ultimate nondisability determination. 8 Robbins, 466 F.3d at 885 (citing Stout v. Comm r of Soc. Sec., 454 9 F.3d 1050, 1055 56 (9th Cir. 2006)). [T]he relevant inquiry is not 10 whether the ALJ would have made a different decision absent any error, 11 it is whether the ALJ s decision remains legally valid, despite such 12 error. 13 Cir. 2008). 14 job of sewing machine operator was based on Dr. Brovender s statement 15 that the 2003 injections had alleviated Plaintiff s foot problems and 16 that her knee and foot problems would not interfere with her ability 17 to manipulate foot controls. 18 Dr. Ivancich s opinion supports the conclusion that Plaintiff 19 continued to suffer from foot problems in 2004 and 2005, long after 20 the 2003 injections. 21 ALJ could have rejected the VE s finding that Plaintiff could perform 22 the job of sewing machine operator. 23 discussed. 24 sufficient justification, therefore, the ALJ committed an error that 25 was not inconsequential to the ultimate nondisability determination. 26 Robbins, 466 F.3d at 885. 27 28 Carmickle v. Comm r of Soc. Sec., 533 F.3d 1155, 1163 (9th Here, the VE s finding that Plaintiff could perform the (AR 44-45.) (AR 184.) (AR 24-25.) If fully credited, however, Based on that opinion, a reasonable No alternative occupations were By rejecting Dr. Ivancich s opinion without Accordingly, the ALJ erred by rejecting Dr. Ivancich s opinion without providing specific, legitimate reasons for doing so. 15 1 B. Adverse credibility determination 2 Plaintiff contends that the ALJ failed to provide clear and 3 convincing reasons to discredit her subjective symptom testimony. (J. 4 Stip. 14-16.) 5 Ivancich s opinion was in error, it is not necessary for it to address 6 the remainder of Plaintiff s arguments. 7 EDCV 08-0737 RNB, 2009 WL 2208088, at *2 (C.D. Cal. July 21, 2009) 8 (finding it unnecessary to address further disputed issues when court 9 found that ALJ failed to properly consider treating doctor s opinion Because the Court finds that the ALJ s rejection of Dr. See Negrette v. Astrue, No. 10 and lay-witness testimony). 11 reevaluate Plaintiff s credibility and RFC after reconsidering the 12 treating doctor s opinion. 13 VI. 14 On remand, the ALJ will necessarily CONCLUSION When there exists error in an administrative determination, the 15 proper course, except in rare circumstances, is to remand to the 16 agency for additional investigation or explanation. 17 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 (2002) 18 (citations and quotations omitted); Moisa v. Barnhart, 367 F.3d 882, 19 886 (9th Cir. 2004). 20 if enhancement of the record would be useful. 21 379 F.3d 587, 593 (9th Cir. 2004); see Harman v. Apfel, 211 F.3d 1172, 22 1179 (9th Cir. 2000) (explaining that decision whether to remand for 23 further proceedings turns upon the likely utility of such 24 proceedings ). 25 no useful purpose would be served by further administrative 26 proceedings and the record has been fully developed, Lester, 81 F.3d 27 at 834, or when remand would unnecessarily delay the receipt of 28 benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). INS v. Ventura, Remand for further proceedings is appropriate Benecke v. Barnhart, Remand for the payment of benefits is appropriate when 16 1 Courts may credit as true the opinions of treating physicians 2 when (1) the ALJ has failed to provide legally sufficient reasons for 3 rejecting such evidence, (2) there are no outstanding issues that must 4 be resolved before a determination of disability can be made, and (3) 5 it is clear from the record that the ALJ would be required to find the 6 claimant disabled were such evidence credited. 7 1178 (citations and quotations omitted); see Benecke, 379 F.3d at 594; 8 Connett, 340 F.3d at 876 (recognizing that courts have some 9 flexibility in applying the credit as true rule). Harman, 211 F.3d at 10 Because the ALJ did not properly weigh and address Dr. Ivancich s 11 opinion, outstanding issues must be resolved before a determination of 12 disability can be made. ORDER 13 14 Harman, 211 F.3d at 1178. Accordingly, IT IS HEREBY ORDERED that (1) the decision of the 15 Commissioner is REVERSED; (2) Plaintiff s request for remand is 16 GRANTED; and (3) this action is REMANDED for further proceedings 17 consistent with this Memorandum Opinion. 18 19 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 20 21 22 23 DATED: January 26, 2012 ______________________________ JEAN P. ROSENBLUTH U.S. Magistrate Judge 24 25 26 27 28 17

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